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ESSENTIALS 

THE  LAW  OF  DAMAGES 


BY 

RALPH  STANLEY  BAUER.  A.  M.,  J.  D. 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1919 


T 


COPYEIGHT   1919 
BY 

Callaghan  &  Company 


'»••     *•, 


« .     »« 


I 


TO  THE  MEMORY  OF 

iHp  :f  atijer 

and  to 

iHp  iHotfjer 


PREFACE 


The  purpose  of  this  book  is  to  state  clearly  the  rules 
of  the  law  of  Damages,  to  comment  upon  and  illustrate 
the  workings  of  the  rules,  and  to  present  important  re- 
cent developments  in  this  field.  An  effort  is  made  to  culti- 
vate in  the  student  an  independent  judgment  as  to  the  cor- 
rectness of  statements  of  principle.  For  this  purpose, 
comparisons  of  adverse  holdings  are  made,  and  question- 
able holdings  are  questioned  or  criticized.  It  is  not  in- 
tended that  this  work  contain  any  extended  treatment 
of  the  law  of  tort  and  contract.  Questions  of  liability  are 
so  interwoven  with  questions  as  to  the  measure  of  dam- 
ages that  it  is  necessary  to  devote  small  portions  of  the 
book  to  treatment  of  the  primary  question  of  the  de- 
fendant's liability,  as  is  done  in  all  books  on  this  subject. 
In  determining  the  amount  of  space  to  be  given  to  each 
portion  of  the  general  subject,  regard  has  been  had  to  the 
relative  importance  of  the  parts  and  to  their  complexity 
and  difficulty. 

The  citations  of  cases  and  quotations  from  them  and 
other  authorities  have  been  selected  from  a  large  mass 
of  material  gathered  from  almost  every  possible  source 
during  the  years  in  which  the  w^riter  has  written  articles 
upon  and  taught  this  subject.  Many  of  the  cases  quoted, 
cited,  or  used  as  illustrations,  are  leading  cases,  and  to 
these  have  been  added  such  other  cases  as  seem  valuable 
for  purposes  of  instruction.  In  the  selection  of  cases  for 
illustrative  purposes,  the  element  of  human  interest  has 
never  been  lost  sight  of;  for  the  student  must  be  inter- 
ested while  instructed.    A  considerable  number  of  the 


vi  PREFACE 

cases  referred  to  are  very  recent,  bringing  the  book  well 
to  date.  For  tlie  convenience  of  the  student  in  any  kind 
of  law  school,  as  well  as  for  practitioners  with  limited 
library  facilities,  the  case  references  are  given  to  all 
series  of  reports. 

The  book  is  planned  with  a  view  to  the  needs  of  two 
types  of  students :  first,  the  student  in  a  law  school  using 
the  text  book  method ;  second,  the  student  in  a  law  school 
pursuing  the  case  method.  The  case  illustrations  and  the 
footnotes  abound  in  quotations  from  decisions,  gi^'ing  the 
student  in  a  text  book  school  an  advantage  usually  only 
that  of  the  student  in  a  case  school, — the  advantage  of 
seeing  the  manner  in  which  a  court  has  actually  expressed 
itself  in  regard  to  the  principle  being  studied  and  the 
manner  in  which  a  court  applies  the  principle  to  facts. 
The  writer,  having  been  both  a  student  and  a  teacher  of 
this  subject  by  the  case  method,  feels  that  the  case  student 
who  has  no  text  book  whatever  is  handicapped,  unless 
he  be  directed  by  a  very  unusual  teacher  and  have  a  phe- 
nomenal ability  to  take  notes  of  lectures.  The  student's 
work  is  likely  to  fail  to  constitute  for  him  an  organic 
whole  at  the  termination  of  his  course,  if  he  has  been 
taught  by  means  of  cases  and  lectures  only.  Such  a  book 
as  this,  placed  in  his  hands  for  independent  use  outside 
of  class  hours,  should  present  a  summary  such  as  will  aid 
him  in  grasping  the  relation  of  principle  to  principle  and 
of  case  to  case  and  of  principle  to  case.  Among  the  cases 
summarized  in  illustrations,  cited  in  support  of  the  text, 
or  quoted  in  text  or  footnotes,  are  a  great  many  of  the 
cases  found  in  the  principal  case  books. 

It  is  believed  also  that  this  book  will  constitute  as  sat- 
isfactory a  help  to  the  practitioner  as  will  any  one-volume 
work. 

The  writer  wishes  gratefully  to  acknowledge  the  assist- 
ance of  his  former  colleague.  Professor  H.  W.  Arant,  of 
Emory  University,  former  chairman  of  the  editorial  board 
of  the  Yale  Law  Journal,  who  has  examined  the  chapter 


PREFACE  \n 

on  Cause  and  Result,  and  also  the  encouragement  given 
him  in  this  work  by  his  former  colleague,  Dean  R.  A. 
Rasco,  of  John  B.  Stetson  University.  In  the  manuscript 
as  it  stood  until  recently,  no  general  treatment  of  the 
measure  of  damages  for  anticipatory  breach  of  contract 
was  attempted,  only  specific  applications  of  the  rules  in- 
volved in  such  measure  appearing  in  different  parts  of 
the  work;  and  the  writer  thankfully  acknowledges  that 
the  presence  of  the  section  on  this  subject,  which,  it  is 
believed,  will  prove  useful,  is  due  to  a  suggestion  by  Dean 
Henry  "W.  Ballantine,  of  the  University  of  Illinois.  In- 
valuable suggestions  by  Mr.  James  C.  Cahill,  managing 
editor  of  the  publishers,  and  by  Mr.  Edward  F.  Donovan, 
formerly  a  student  of  the  writer,  formerly  of  the  staff  of 
the  Standard  Dictionary  and  the  Literary  Digest,  and 
now  with  the  Edward  Thompson  Company,  have  been 
gladly  and  gratefully  followed.  Further,  the  writer 
acknowledges  the  encouragement  and  very  substantial 
aid  given  by  his  wife. 

The  excellent  libraries  of  three  law  schools,  the  Georgia 
State  Library,  and  one  private  library  have  been  used  at 
various  times  in  the  preparation  of  this  work.  Prac- 
tically everything  of  any  possible  bearing  on  the  subject 
has  been  available.  Special  acknowledgment  is  due  the 
kindness  of  the  Honorable  J.  C.  Otts,  of  the  bar  of 
Spartanburg,  South  Carolina,  who  opened  his  large  pri- 
vate library  to  the  writer  during  the  long  sojourn  of  the 
latter  near  his  city. 

R.  S.  B. 
Champaign,  Illinois,  July,  1919. 


TABLE  OF  CONTENTS 


Preface   v 

PART  I 

GENERAL    PRINCIPLES 
CHAPTER  PAGE 

I.  Introduction    1 

II.  Damnum  absque  Injuria   4 

III.  Limitation  of  Recovery  to  Plaintiff's  Interest  7 

IV.  Cause  and  Result   14 

V.  Avoidable  Consequences    62 

VI.  Certainty  of  Proof  72 

VII.  Entire  and  Prospective  Damages 82 

VIII.  Excessive  and  Inadequate  Damages 89 

IX.  Liquidated  Damages  and  Penalties 97 

X.  Nominal  Damages  Ill 

XI.  Exemplary  Damages    117 

XII.  Aggravation  and  Mitigation 136 

XIIL  Conflicts  of  Laws 140 

XIV.  General  Principles  of  Pleading  and  Practice  144 

PART  II 

COMPENSATION  AND   ITS  ELEMENTS 

XV.     Compensation  in  General 147 

XVI.     Loss  of  Time,  Wages,  and  Earning  Power 150 

XVIL     Property    155 

XVIIL     Expenses    156 

XIX.     Profits  and  Bargains 160 

XX.     Physical  Pain    167 

XXL     Mental  Suffering  169 

XXII.    Inconvenience  185 

iz 


X  TABLE    OF    CONTENTS 

CHAPTER  PAGE 

XXIII.     Reputation 187 

XXIV.     Loss  of  Services 189 

XXV.     Expenses  of  Litigation 191 

XXVL    Interest    195 

PART  III. 

DAMAGES  IN  C0NTRAC5T  ACTIONS  AND  PARTICULAR  CLASSES  THEREOF 

XXVIL     Contracts  in  General 199 

XXVIII.     Contracts  Relating  to  Real  Estate 213 

XXIX.     Sales  and  Contracts  to  Sell  Personalty 222 

XXX.     Contracts  to  Pay  or  Lend  Money 233 

XXXI.  Contracts  for  Work,  Labor  and  Services ....   236 

XXXII.     Insurance 246 

XXXin.     Indemnity   253 

XXXIV.     Agency 256 

XXXV.    Partnership 261 

XXXVL     Carriers  264 

XXXVII.     Telegraph  and  Telephone  Companies 274 

XXXVIII.    Breach  of  Promise  to  Marry. 282 


PART  IV 

DAMAGES   EST   PARTICULAR    CLASSES   OP   TORT  ACTIONS 

XXXIX.     Negligent  Torts  307 

XL.     Tortious  Damage  to  Realty 309 

XLI.     Tortious  Damages  Pertaining  to  Personalty . .  329 

XLIL    Nuisance    342 

XLIII.     Battery  and  Other  Personal  Injuries 347 

XLIV.    Assault    363 

XLV.     Slander  and  Libel 365 

XLVI.     Malicious  Prosecution    378 

XL VII.     False  Imprisonment   385 

XLVIII.     Fraud  and  Deceit  388 

XLIX.     Seduction    393 

L.     Criminal  Conversation 400 

LI.     Enticement  of  Spouse  and  Alienation  of  Af- 
fections   406 


TABLE    OF    CONTENTS  xi 

CHAPTER  PAGE 

LII.     Interference  with  the  Right  of  Privacy 411 

LIII.     Death  by  Wrongful  Act 414 

PART  V. 

STATUTORY    PROCEEDINGS    FOR    THE    CONDEMNATION    OF    PROPERTY 

LIV.     Eminent  Domain 427 

PART  VI 

MODERN  LEGISLATION  RELATING  TO  WORKERS  INJURED  IN 
INDUSTRIES 

LV.     Employers'  Liability  and  Workmen's   Com- 
pensation    435 


LAW  OF  DAMAGES 


PART  I 
GENERAL  PRINCIPLES 

CHAPTER  I 

Inteoductiox 

1.  "Dajna^e"  and  "Damages." — Damage  is  loss  or 
harm.  Damages,  the  plural  of  damage,  is,  rather  unfor- 
tunately, used  in  two  senses :  first,  as  the  mere  plural  of 
damage;  and  second,  as  meaning  compensation  claimed 
or  awarded  in  a  judicial  proceeding  for  damage  or  for 
the  invasion  of  a  legal  right.^  In  the  study  of  this  sub- 
ject, the  use  of  the  word  "damages"  in  the  first  of  these 
two  senses  should,  as  far  as  possible,  be  avoided,  in  order 
to  obviate  difficulties  arising  from  ambiguity  of  expres- 
sion. 

Damages  may  be  grounded  either  in  a  legal  injury 
from  which  no  damage  has  resulted,  in  which  case  they 
are  known  as  nominal  damages  and  amount  to  only  a 
nominal  sum  such  as  six  cents ;  or  they  may  be  grounded 
in  damage  resulting  from  such  a  legal  injury  or  in  damage 
resulting  from  what  becomes  a  legal  injury  only  when 

1 — ^Damages,    a    sum    of    money  injury.    It  is  a  word  easy  to  define, 

claimed  or  adjudged  in  compensa-  but   often   exceedingly   dif&eult  of 

tion    for    loss    or    injury. — Oxford  application." — Jemo  v.  Tourist  Ho- 

Dictionary.  tel  Co.,   (1909)  55  Wash.  595,  104 

**  'Damages,'     briefly      defined,  Pac.  820,  19  Ann.  Cas.  1199. 
means  compensation  for  the  legal 

1 

Bauer  Dam. — 1 


2  LAW  OF  DAMAGES 

accompanied  by  damage.  A  trespasses  on  B's  land, 
doing  no  harm.  B  can  recover  nominal  damages  in  vin- 
dication of  Ms  legal  right.  A  trespasses  upon  B  's  land, 
destroying  B  's  trees.  B  can  recover  compensator^'-  dam- 
ages for  his  loss.  A  so  conducts  his  fertilizer  works  as 
to  do  serious  damage  to  B  in  the  occupation  and  enjoy- 
ment of  his  home,  odors  and  gases  from  A's  works 
invading  B's  property.  B  can  recover  compensatory 
damages  for  his  loss.  In  the  latter  case,  no  right  of 
action  would  have  accrued  to  B  if  he  had  not  been  dam- 
aged by  the  acts  of  A,  for  a  nuisance  gives  no  right  of 
action  if  not  resulting  in  damage  to  the  plaintiff.  Like- 
wise, negligence  ripens  into  an  actionable  injury  only 
when  resulting  in  damage. 

The  great  outstanding  rules  of  the  law  of  damages, 
to  be  discussed  at  length  hereafter,  are:  first,  that,  in 
order  to  constitute  a  recQverable  element  of  damage,  a 
loss  or  injury  must  be  a  proximate  result  of  the  defend- 
ant's wrong;'  and  second,  that  the  nature  of  the  plaintiff's 
damage  and  its  proximate  connection  with  the  def end- 
ant 's  wrong,  must  be  shown  with  a  reasonable  degree  of 
certainty. 

Some  elements  of  loss  for  which  damages  are  assessed 
are  pecuniary,  as  in  the  case  of  a  deprivation  of  money 
or  a  thing  having  money  value.  Other  elements,  such 
as  physical  and  mental  suffering,  are  non-pecuniary. 

As  will  be  observed  in  subsequent  portions  of  this  work, 
the  court  today  exercises  considerable  control  over  the 
amount  of  damages  assessed,  setting  aside  a  verdict  for 
a  sum  so  large  as  to  evince  passion  and  prejudice  on  the 
part  of  the  jury.  Such  a  control,  even  today,  it  is  univer- 
sally admitted,  should  be  exercised  with  extreme  caution. 
There  is,  however,  a  historical  reason  why  the  finding  of 
a  jury  as  to  damages  was  once  more  binding  upon  the 
court  than  it  now  is.  In  the  days  of  the  early  common 
law,  the  jury  was  composed  of  men  who  were  supposed 
to  know  the  facts  in  the  case.    Jurors  were  witnesses. 


INTRODUCTION  3 

Today,  as  is  well  known,  the  situation  is  altogether  dif- 
ferent. In  contract,  and  as  to  pecuniary  elements  of  dam- 
age in  tort,  the  court  can,  and  does,  exercise  rather  a 
close  control  over  the  amount  of  damages;  but,  as  to 
non-pecuniary  elements  of  damage  in  torts,  the  jury  may 
exercise  a  discretion  of  considerable  breadth,  for  it  is, 
as  to  such  elements,  exceedingly  difficult,  in  most  cases, 
to  say  that  a  verdict  is  excessive  or  inadequate,  and  it 
is  altogether  impossible  to  lay  down  practically  complete 
general  rules  as  in  contract. 

2.  Money  Standard  by  Which  Damages  Are  Measured. 

— Damages  are  measured  in  such  money  as  is  legal 
tender  in  the  country  at  the  time  of  the  rendition  of  the 
verdict.  A  verdict  assessing  damages  at  a  certain 
amount  **in  United  States  gold  coin"  is  bad,  unless  it 
be  in  an  action  based  upon  an  express  or  implied  promise 
to  pay  in  such  coin.  It  is  improper  that  the  verdict 
should  thus  single  out  one  of  the  kinds  of  legal  tender,  in 
the  absence  of  a  stipulation  to  this  effect  by  the  parties.^ 

2— Finger  v.  Diel,  (1875)  1  Calif. 
Unreported  Cases,  889. 


CHAPTER  II 
Damnum  Absque  Injuria 

3.  In  General. — Of  the  myriads  of  losses  suffered  daily, 
comparatively  few  are  such  as  to  give  any  right  of  action 
against  any  person.  A,  through  his  own  awkwardness, 
falls  and  breaks  some  bones.  B,  having  bad  business 
judgment,  enters  into  a  contract  through  which  he  loses 
money.  C's  house  is  struck  by  lightning.  D's  business 
is  diminished  by  the  honest  and  legal  competition  of  X. 
E  willingly  consents  to  the  perpetration  of  a  wrong  upon 
him  by  Y.  Each  of  these  persons  has  suffered  a  loss  or 
damnum,  but  not  one  of  them  has  a  right  of  action.  Not 
even  nominal  damages  can  be  recovered  against  anybody 
in  any  of  these  cases,  for  no  one  has  committed  an  injuria 
or  legal  wrong. 

Right  here  it  is  essential  that  the  student  notice  the 
legal  use  of  the  word  injuria.  It  does  not  mean  ** in- 
jury'* in  the  ordinary  popular  sense,  but  it  means  legal 
injustice,  just  as  it  does  in  Latin  writings.  The  English 
word  injury  is  often  used  with  the  same  legal  meaning. 
A  maxim  bringing  out  forcefully  this  meaning  is,  '*  Vol- 
enti non  fit  injuria.'^  (*'To  one  who  is  willing,  a  legal 
injustice  is  not  done.")  It  could  not  be  contended  that 
one  who  is  willing  suffers  no  injury  in  the  popular  sense, 
but  it  is  perfectly  clear  that  he  has  not  suffered  a  legal 
injustice  for  which  he  can  maintain  an  action.^ 

4.  Some  Instances  of  Damnum  Absque  Injuria. — A 
very  common  instance  of  damnum  absque  injuria  is  the 

1— See  Pasleyv.  Freeman,  (1789)       Vincent,   (1845)    10   Mete.   (Mass.) 
3   T.   R.   51,   100   Eng.   Repr.   450,      371,  43  Am.  Dec.  442. 
12  E.  B.  C.  235;  and  Howlajid  v. 

4 


DAMNUM  ABSQUE  INJURIA  6 

privileged  communication  of  statements  which,  if  not 
privileged,  would  be  slanderous  or  libelous.  The  fact 
that  a  derogatory  statement  happens  to  be  communicated 
between  persons  whose  relations  are  such  as  to  make  it 
privileged,  may  not  lessen  the  actual  damage  done;  but 
the  fact  of  privilege  prevents  the  utterance  from  being 
an  actionable  wrong. 

One  who  reports  to  a  street  car  company  the  miscon- 
duct of  its  conductor,  even  though  prompted  by  ill-will 
and  resentment,  is  not  liable,  as  he  has  done  the  conduc- 
tor no  legal  wrong.^ 

One  land  owner  may  use  and  improve  his  land  for  the 
purpose  for  which  similar  land  is  ordinarily  used,  and 
may  do  what  is  necessary  for  that  purpose,  building  upon 
it  or  raising  or  lowering  its  surface,  although  the  effect 
may  be  to  prevent  surface  water  which  before  flowed 
upon  it  from  coming  upon  it,  or  to  draw  from  adjoining 
land  surface  water  which  would  otherwise  remain  there, 
or  to  shed  surface  water  back  over  land  on  whiAi  it  would 
otherwise  not  go.^ 

Public  street  improvements  reasonably  made  by  a  city, 
as  in  raising  or  lowering  a  grade,  may  cause  inconven- 
ience and  loss  to  an  adjoining  owner,  without  giving  him 
a  right  of  action.* 

Where  defendant  city  bought  a  lot  adjoining  that  of 
plaintiff  and  opened  a  street  through  the  lot  purchased, 
making  plaintiff's  lot  bounded  on  three  sides  by  public 
streets,  rendering  it  ungainly  and  unsightly  to  the  pub- 
lic, and  depriving  it  of  privacy,  this  is  mere  damnum 
absque  injuria.'^ 

2— Lancaster       v.       Hamburger,  Minn.  172,  43  N.  W.  849,  6  L.  E. 

(1904)    70    0.    St.    156,    71    N.    E.  A.   573. 

289,  1  Ann.  Cas.  248,  65  L.  R.  A.  4 — Reardon    v.    San     Francisco, 

856.  (1885)    66   Calif.   492,   6   Pac.   317, 

3 — The  above  text  is  quoted  al-  56  Am.  Rep.  109;  Denver  v.  Bayer, 

most  verbatim  from  Jordan  v.  St.  (1883)    7   Colo.   113,  2  Pac.  6. 

Paul,  M.  &  M.  R.  Co.,   (1889)   42  5— Peel    v.    Atlanta,    (1890)    85 


6  LAW  OF  DAMAGES 

Logs  are  driven  down  a  stream,  and,  without  any  neg- 
ligence of  the  person  driving  them,  are  deposited  upon 
the  property  of  a  riparian  owner.  The  latter  has  no 
action,  this  being  a  case  of  damnum  absque  injuria.^ 

CASE  ILLUSTRATIONS 

1.  A  obstructed  the  light  of  B,  his  neighbor,  by  erecting  on  his 
own  land  a  fence  twenty  feet  high,  opposite  B  's  windows.  In  so 
doing,  A  did  not  interfere  with  any  legal  right  of  B.  Therefore, 
B,  though  damaged,  cannot  maintain  an  action^ 

2.  Defendant  made  an  excavation  on  his  own  land,  near  a 
street,  violating  no  law  in  doing  so.  Plaintiff,  passing  on  the 
street  in  the  dark,  stepped  over  the  street  line,  fell  into  the  exca- 
vation, and  was  injured.  Plaintiff  cannot  recover,  as  it  is  a  case 
damnum  aitsque  injuria.^ 


Ga.  138,  11  S.  E.  582,  8  L.  R.  A. 
787. 

6 — Carter  v.  Thurston,  (1877)  58 
N.  H.  104,  42  Am.  Rep.  584;  Hot 
Springs  Lumber  &  Mfg.  Co.  v. 
Revercomb,  (1906)  106  Va.  176,  55 
S.  E.  580,  9  L.  R.  A.  (N.  S.)  894; 
Boutwell  V.  Champlain  Realty  Co., 
(1915)  89  Vt.  80,  94  Atl.  108, 
Ann.   Cas.  1918  A  726. 

"Floating  logs  may  cause  dam- 
age to  the  estate  of  the  riparian 
owner;  but,  if  the  owner  of  the 
logs  uses  due  care  and  skill  in 
driving  them,  he  is  not  liable  for 
such  damage.  Land  on  navigable 
streams  is  subject  to  the  danger  in- 
cident to  the  right  of  navigation; 
and,  where  logs  are  driven  in  a 
srtream  in  an  orrdinarily  careful,  pru- 
dent   manner^    the    owner    is    not 


liable  for  damages  which  may  re- 
sult to  the  riparian  owner. ' ' — Field 
V.  Apple  River  Log-Driving  Co., 
(1887)  67  Wis.  569,  31  N.  W.  17. 

"So  it  was  said  that,  if  a  man 
be  driving  cattle  through  a  town, 
and  one  of  them  goes  into  another 
man's  house,  and  he  follows  him, 
trespass  does  not  lie  for  this." — 
Holmes,  The  Common  Law,  p.  118, 
citing  Popham,  p.  162,  and  other 
authorities. 

Accord:  Hartford  v.  Brady, 
(1874)  114  Mass.  466,  19  Am.  Rep. 
377. 

7— Mahan  v.  Brown,  (1835)  13 
Wend.  (N.  Y.)  261,  28  Am.  Dec. 
461. 

8— Horwland  v.  Vincent,  (1845) 
10  Mete.  (Mass.)  371,  43  Am.  Dec. 
442. 


CHAPTER  III 
Limitation  of  Recovery  to  Plaintiff's  Interest 

5.  Limitation  of  Plaintiff's  Interest  a  Question  Arising 
Usually  in  Tort. — In  contract,  the  limitation  of  the  plain- 
tiff's recovery  by  the  nature  or  extent  of  his  interest  does 
not  ordinarily  arise;  for  it  is  not  usually  according  to 
the  agreement  of  the  parties  that  rights  under  the  con- 
tract shall  be  carved  into  pieces  and  assigned  piecemeal. 
Where  a  contract  is  broken,  the  offended  party  can  ordi- 
narily recover  all  the  damages  that  are  recoverable  by 
any  person  for  the  breach. 

In  tort,  however,  the  defendant's  wrong  may  have  af- 
fected numerous  interests  of  numerous  persons;  and  nice 
questions  arise  regarding  the  effect  of  the  limits  of  a 
plaintiff's  right  upon  the  measure  of  damages  to  be  al- 
lowed. 

6.  How  Plaintiff's  Recovery  Is  Limited  by  His  Inter- 
est.— Where  an  action  in  regard  to  conversion  of  or  in- 
jury to  property  is  between  a  defendant  having  legal 
title  and  a  plaintiff  having  a  more  limited  interest,  the 
latter  can,  of  course,  recover  no  more  than  the  value  of 
his  own  interest.  Such  cases  are  actions  by  a  pledgee 
against  a  pledgor  for  interfering  with  the  pledge,  actions 
by  a  vendee  on  credit  for  conversion  against  his  vendor 
who  has  been  paid  a  part  of  the  purchase-price,  and 
actions  by  a  tenant  against  his  landlord  for  wrongful 
eviction.^    It  would  be  absurd  to  contend  that  a  pledgor 

1 — ^In  trover,  where  defendant  deducted  by  the  jury  in  assessing 
holds  a  lien  on  the  property  to  damages.  Fowler  v.  Oilman, 
a  certain  amount,  that  amount  is       (1847)    13   Mete.    (Mass.)    267. 

7 


8  LAW  OF  DAMAGES 

could  recover  the  entire  value  of  the  thing  pledged,  when 
his  interest  amounts  simply  to  the  difference  between  the 
value  of  the  pledge  and  the  amount  for  which  it  is 
pledged;  and  it  would  be  equally  absurd  to  say  that  a 
tenant  for  one  year  could  recover  from  his  landlord  com- 
pensatory damages  in  a  sum  greater  than  the  value  of 
his  term,  if  the  landlord  wrongfully  evicts  him,  in  the 
absence  of  proximate  consequential  damage.  All  of  this 
is  easy  to  see. 

A  greater  difficulty  comes  in  the  cases  wherein  the 
plaintiff,  a  person  having  a  limited  interest  in  the  prop- 
erty in  question,  sues  the  defendant,  a  stranger,  for  tor- 
tious injury  to  or  conversion  of  the  property.  Some- 
times the  interests  of  different  persons  in  the  property 
are  sufficiently  distinct  to  enable  one  to  say  readily  for 
what  elements  of  damage  each  person  in  interest  may  re- 
cover. For  an  injury  affecting  his  use  of  land  during 
his  term,  a  tenant  may  recover  for  the  damage  done  to  his 
interest;  and,  if  the  same  injury  affects  the  landlord's 
reversion  in  the  land,  he  can  recover  damages  to  the  ex- 
tent of  the  injury  done  to  his  reversion.^  If  the  proof 
does  not  show  more  than  that  plaintiff  is  a  bare  occupant 
of  land  upon  which  a  trespass  has  been  committed,  or 
that  he  has  only  a  three-fourths  interest  in  the  premises, 
an  instruction  permitting  him  to  recover  for  the  entire 
damage  to  the  land,  is  inaccurate.^  But  the  fact  that 
plaintiff  has  given  a  mere  executory  and  revocable  license 
to  cut  and  remove  timber  from  his  land,  does  not  prevent 
him  from  getting  damages  for  injury  to  the  trees  on  the 
land." 

A  mere  finder  sues  for  the  conversion  of  the  object  he 
has  found.  He  has  a  right  to  the  possession  of  the  found 
article  against  the  entire  world,  except  the  true  owner, 

2— Seely    v.    AJden,    (1869)     61  4— Clarke   v.  New  York,  N.   H. 

Pa.  St.  302,  100  Am.  Dec.  642.  &  H.  R.  Co.,   (1904)   26  E.  I.  59, 

3 — Sweeney      v.      Connauglitan,  58  Atl.  245. 
(1901)  100  111.  App.  79. 


PLAINTIFF'S  INTEREST  9 

and  so  he  may  maintain  trover  and  get  the  entire  value 
of  the  article,^  which,  of  course,  does  not  free  him  of  the 
obligation  to  return  the  article  to  the  true  owner,  if  he 
is  later  ascertained.  Where  crops  owned  by  the  tenant 
or  mortgagor  of  land  are  converted,  the  right  of  action 
is  exclusively  in  such  tenant  or  mortgagor.^  For  an  in- 
jury to  realty,  a  reversioner  may  recover  damages  to  the 
extent  of  the  diminution  in  value  of  his  reversion,"^  and 
a  life  tenant  may,  according  to  the  better  view,  recover 
only  for  the  diminution  in  value  of  his  estate.*  But  some 
courts  hold  that  a  life  tenant  may  recover  damages  for 
any  injury,  to  the  extent  of  the  damage  inflicted  upon  the 
life  estate  and  a  remainder  or  reversion,  where  the  in- 
jury is  permanent.  It  seems,  however,  where  this  view 
is  taken,  that  the  life  tenant  is  under  a  legal  obligation 
to  pay  over  to  the  reversioner  or  remainder  man  an 
amount  sufficient  to  compensate  for  the  loss  of  the  latter.^ 

A  life  tenant  of  personalty  can,  in  trover,  get  damages 
for  injury  to  his  interest  only,  and  not  damages  in  the 
total  amount  of  the  value  of  the  property.**' 

When  fixtures  are  removed  or  other  injury  done  to 
mortgaged  realty,  it  is  obvious  that  damage  is  suffered 

5 — Armory  v.  Delamirie,   (1721)  the  basis  of  the  annual  rental  or 

1  Strange  505,  93  Eng.  Repr.  664.  income    value    multiplied    by    the 

6 — Woodward  v.  Pickett,  (1857)  number  of  years  based  on  the  ex- 

8  Gray  (Mass.)  617;  Page  v.  Rob-  pectation  of  life  of  the  life  tenant 

inson,  (1852)  10  Cush.  (Mass.)  99.  as    determined   largely    from    the 

7 — Lowery    v.    Rowland,    (1893)  mortality    tables." — 17    R.    C.    L. 

104  Ala.  420,  16  So,  88;  Jordan  v.  644,  citing:  Grove  v.  Youell,  (1896) 

Benwood,    (1896)    42   W.   Va.   312,  110   Mich.   285,  68   N.  W.   132,   33 

26    8.    E.    266,    36    L.    R.    A.    519,  L.  R.  A.  297;  and  Jordan  v,  Ben- 

57  Am.  St.  Rep.  859.  wood,   supra.     See   Greer   v.   New 

8— "In    determining    the    value  York,  (1865)  1  Abb.  Prac.  (N.  S.) 

of  a  life   estate  the   common   law  206,  27  N.  Y,  Super.  Ct.  675. 

rule  of  valuing  the  life  estate  at  9 — See    Rockwood    v,    Robinson, 

one  third  and  the  remainder  at  two  (1893)    159    Mass.    406,   34   N.    E, 

thirds    of    the    capital    sum   would  521. 

appear    to    be    followed    in    some  10 — Russell   v.   Kearney,    (1859) 

jurisdictions,  but  the  modern  tend-  27  Ga.  96. 
eney  is  to  compute  the  value   on 


10  LAW  OF  DA]\IAGES 

by  both  mortgagor  in  possession  and  mortgagee.  The 
mortgagor  in  possession  suffers  a  loss  of  the  present  use 
of  the  fixtures  wrongfully  removed  or  a  diminution  in 
the  value  of  the  use  of  the  property,  plus  an  injury  to  the 
future  complete  ownership  if  he  redeems ;  and  the  mort- 
gagee suffers  a  diminution  in  value  of  his  security  to  the 
extent  of  the  value  of  the  fixtures,  and,  in  a  state  in  which 
a  mortgage  transfers  legal  title  to  the  mortgagee,  the  loss 
to  the  mortgagee  is  a  diminution  in  value  of  property  to 
which  he  actually  holds  legal  title  and  so  may  be  sued  for 
directly  by  the  mortgagee.^  ^  It  has  been  held  that  this 
applies,  not  only  to  first,  but  to  second  or  third  mort- 
gagees ; "  but  the  very  reason  for  this  rule  as  to  a  first 
mortgagee  would  seem  to  defeat  it  as  to  those  who  are 
subsequent.^^  The  first  mortgagee  is  allowed  to  recover 
only  because  he  has  legal  title;  ^^  and,  if  he  has  it,  no  one 
else  can  have  it  at  the  same  time.  Second  and  subsequent 
mortgagees  are  mere  lienholders,  and  they  cannot  be  dam- 
aged either  actually  or  technically  by  injury  to  the  realty, 
to  any  greater  extent  than  mere  impairment  of  security, 
so  that  it  would  seem  that  this  should  be  the  extent  of 
the  recovery  of  any  such  mortgagee.  In  states  wherein 
even  a  first  mortgagee  has  only  a  lien,  it  would  seem  diffi- 
cult, on  principle,  to  say  that  a  mortgagee's  right  of  ac- 
tion for  an  injur)'-  to  realty  gives  him  a  right  to  damages 
any  more  than  sufficient  to  compensate  him  for  the  im- 
pairment of  his  security ;  and  so,  in  jurisdictions  adhering 
to  the  equitable  lien  theory  of  the  real  estate  mortgage, 
the  mortgagee,  whether  he  be  a  first  or  a  subsequent  mort- 
gagee, it  would  seem,  can  recover  for  only  the  impair- 
ment of  the  value  of  his  lien.^^    In  a  state  in  which  the 

11— Gooding  v.  Shea,  (1869)   103  14— Gooding  v.  Shea,  supra. 

Mass.  360,  4  Am.  Rep.  563.  15 — * '  A  mortgagee  out  of  posses- 

12 — Gooding  v.  Shea,  supra.  sion    or    having   no   right    of    pos- 

13 — Turrell    v.    Jackson,    (1877)  session  of  the  mortgaged  property 

39  N.  J.  Law  329.    See  Martin  v.  can  maintain  no  form  of  action  in 

Franklin       Fire       Insurance      Co.,  which   the  right  to  recover   for   a 

(1875)    38   N.  J.  Law  140.  tort  committed  on  or  to  such  prop- 


PLAINTIFF'S  INTEREST  11 

mortgagee  holds  legal  title,  the  right  of  action  of  the 
mortgagor,  of  course,  is  based  upon  his  present  posses- 
sion or  right  of  present  possession;  ^^  and,  in  a  state 
where  legal  title  remains  in  the  mortgagor,  the  right  of 
action  of  the  mortgagor  is  grounded  in  both  legal  title 
and  the  present  right  of  possession, 

A  somewhat  complicated  question  is  how  far  the  satis- 
faction made  to  one  of  a  number  of  holders  of  interests 
in  the  same  subject-matter  will  discharge  the  claims  of 
the  others.  Superiority  of  right  of  the  parties  in  interest 
determines.  The  due  satisfaction  of  the  claim  that  is 
prior  to  all  of  the  others  will  discharge  all  the  claims. 
But  the  mere  existence  of  a  claim  prior  to  that  of  the 
plaintiff  does  not  bar  the  plaintiff's  claim.  It  is  no  de- 
fence to  a  suit  by  a  mortgagor  against  a  tortfeasor  to  say 
that  the  mortgagee  has  a  superior  right  of  action,  without 
saying  that  such  right  of  action  has  been  satisfied,  or  that 
a  demand  has  been  made  by  the  party  having  a  prior 
interest,  or  that  the  defendant  has  been  authorized  by  such 
party  in  interest  to  resist  plaintiff's  claim  for  his  bene- 
fit. Neither  is  it  a  defence  to  plead  that  a  person  having 
an  inferior  right  to  that  of  plaintiff  has  brought  an 
action." 

'*A  bailee  who  is  answerable  over  to  the  bailor  for  safe 
keeping,  is  entitled  to  recover  the  value  of  the  property 
bailed  against  a  stranger."  ^^ 

The  holder  of  a  lien  against  personalty  can,  in  the  event 
of  its  wrongful  taking,  procure  damages  to  the  extent 
of  the  value  of  his  lien.^^  Where  the  plaintiff  is  merely 
a  holder  of  executions  to  which  certain  goods  are  subject, 
a  wrongful  taker  of  the  goods  cannot  be  made  to  respond 
in  damages  to  the  entire  amount  of  the  value  of  the  goods, 

erty  is  dependent  upon  possession  ject,  see  the  discussion  in  Gooding 

or  the  right  orf  possession,  such  as  v.  Shea,  supra, 

trespass,  trover,  or  replevin." — 20  18 — Caswell    v.    Howard,    (1835) 

Am.   &  Eng.  Encyc.  of  Law  10l6.  33   Mass.    (16  Pick.)    562. 

16 — Gooding  v.  Shea,  supra,  19 — Outcalt  v.  Durling,  (1856)  25 

17 — On  these  phases  of  the  sub-  N.  J.  Law  443. 


12  LAW  OF  DAMAGES 

but  only  to  the  amount  of  the  executions,  if  such  amount 
happen  to  be  less  than  the  value.^®  It  has  been  held  that 
a  mortgagor  in  possession  can  maintain  an  action  for 
injury  to  the  mortgaged  real  estate  and  may  recover  for 
the  whole  injury ;  but  he  recovers  for  his  own  benefit  only 
such  an  amount  as  will  compensate  him  for  the  damage  to 
his  o^vn  interest,  and  what  he  recovers  in  excess  of  this  is 
for  the  benefit  of  the  mortgagee.^^ 

If  the  plaintiff  has  actually  contracted  to  sell  goods  in 
a  certain  place  where  they  are  to  be  delivered  at  a  speci- 
fied price,  and  the  goods  are  wrongfully  destroyed  in 
transit,  the  plaintiff's  measure  of  damages  is  the  price 
at  which  the  goods  are  contracted  to  be  sold.  His  in- 
terest in  the  goods  really  amounts  to  the  right  to  get  the 
contract  price  for  them.22 

CASE  ILLUSTRATIONS 

1.  A  mortgagor  cut  and  carried  away  timber  trees  standing  on 
the  mortgaged  premises.  Held  that,  after  condition  broken,  the 
mortgagee,  although  not  in  actual  possession,  may  maintain  tres- 
pass against  the  mortgagor  and  recover  for  the  injury  to  the  f ree- 
hold.2« 

2.  X  executes  a  chattel  mortgage  on  machinery  to  Y  and  Z. 
An  officer  takes  possession  of  part  of  the  machinery  under  an 
attachment  issued  against  A  and  B,  who  held  legal  title  under  a 
prior  unsatisfied  mortgage,  but  had  not  taken  possession.  Held 
that  Y  may  recover  of  the  officer,  in  trespass  and  trover,  the  full 
value  of  the  property  taken.  "The  plaintiff  was  in  possession  of 
the  property.  He  had  an  interest  in  it,  acquired  by  his  mort- 
gage deed.  He  is,  therefore,  entitled  to  the  possession,  and  to 
the  property  also,  against  all  the  world  but  the  real  owner.  The 
defendant  was  a  mere  stranger.     •    *     *    if  tjjg  -^^jt  is  against 

20 — Spoor  V.   Holland,   (1832)    8  22 — Tompkins  v.  Kanawha  Board, 

Wend.   (N.  Y.)    445,   24  Am.  Dec.  (1882)   21   W.  Va.  224, 

37.  23— Page  v.  Robinson,  (1852)  10 

21— Gooding  v.  Shea,  supra.  Cush.  (Mass.)  99. 


PLAINTIFF'S  INTEREST  13 

a  stranger,  then,  he  recovers  the  value  of  the  property  and  in- 
terest, according  to  the  general  rule ;  and  holds  the  balance  be- 
yond his  own  interest,  in  trust  for  the  general  owner. ' '  ^* 

24— White    v.    Webb,    (1842)    15 
Conn.  302. 


CHAPTER  IV 

Cause  and  Result 

7.  In  General. — From  the  beginning  of  history,  courts 
trying  civil  causes  have  been  troubled  with  the  question 
what  consequences  of  a  wrongful  act  entitle  the  wronged 
person  to  compensation  from  the  wrongdoer.  Putting  the 
matter  another  way,  the  question  in  each  case  is,  ''Is  the 
defendant's  wrong,  legally  considered,  the  cause  of  the 
injury  to  the  plaintiff  or  of  a  particular  element  of  dam- 
age under  consideration!"  or  "Can  a  jury,  on  the  evi- 
dence, rightly  bring  in  a  verdict  based  upon  a  conclusion 
that  defendant's  wrong  is  the  legal  cause  of  the  injury 
to  plaintiff  or  of  such  element  of  damages  as  is  in  ques- 
tion?" The  question  is  often  determined  by  a  decision 
whether,  on  the  evidence,  the  trial  judge  was  warranted 
in  saying,  as  a  matter  of  law,  that  defendant's  wrong 
was  not  a  proximate  cause  of  the  injury  complained  of. 

It  is  clear  that  not  all  ultimate  effects  of  all  acts  are 
compensated  for  by  law.  A  rightfully  calls  upon  B,  inno- 
cently causing  B  to  forget  that  he  has  an  important  busi- 
ness appointment.  B,  through  failure  to  keep  the  ap- 
pointment, fails  to  make  a  profit  of  $5,000  on  a  deal  which 
he  would  have  made  but  for  A's  interruption.  Certainly, 
A  cannot  be  held  liable  for  B's  loss;  and,  in  order  to 
arrive  at  such  a  conclusion,  it  is  not  necessary  or  even 
proper  to  consider  legal  rules  as  to  cause  and  result. 
What  A  did  was  entirely  lawful,  there  being  neither  wilful 
tort  nor  negligence  nor  breach  of  contract.  In  such  a 
case,  there  is  simply  no  cause  of  action  whatever,  and  so 
it  is  only  confusing  to  give  undue  weight  to  the  question 
what,  on  such  a  state  of  facts,  is  the  legal  relation  of 
causes  and  effects. 

14 


CAUSE  AND  RESULT  15 

Where  A  lends  a  pistol  to  B,  who  accidentally  injures 
C,  the  injury  is  only  a  remote  result  of  A's  act,  which, 
it  may  be  noted,  is  not  a  wrongful  act,  so  that  an  action 
against  A  is  not  based  upon  a  wrong  at  all  and  so  must 
fail,  not  only  for  lack  of  causal  connection  with  A's  act, 
but  also  for  lack  of  any  basis  on  which  to  begin  an  action 
at  alV 

Nor  is  a  defendant  liable  for  all  effects  even  of  a  wrong- 
ful act.  In  some  cases,  the  defendant  has  actually  been 
negligent,  but  may  or  may  not  have  proximately  caused, 
by  his  negligence,  the  damage  complained  of.  In  such  a 
case,  as  damage  is  the  gist  of  the  action  in  all  negligence 
cases,  the  entire  action  succeeds  or  fails,  according  to  the 
solution  of  the  question  by  the  jury,  under  proper  instruc- 
tions, whether  the  defendant's  negligence  is  the  proxi- 
mate cause  of  the  plaintiff's  damage,  so  as  to  afford  a 
right  to  damages. 

In  another  case,  the  defendant  has  clearly  committed 
a  legal  injury  to  the  plaintiff,  such  injury  being  followed 
by  elements  of  damage  to  the  plaintiff,  which  elements  we 
will  designate  as  ' '  1, "  <  ^  2, "  ' '  3, "  and  "  4. "  Perhaps  ele- 
ments *'l"  and  '*3"  are  unquestionably  proximate  results 
of  defendant's  wrongful  act,  but  there  is  a  difficult  ques- 
tion whether  elements  "2"  and  **4,"  if  caused  at  all  by 
such  act,  are  proximate  results  of  defendant's  wrong,  i.  e. 
such  elements  of  damage  as  defendant  must  make  com- 
pensation for  under  the  law. 

Where  plaintiff's  half  carload  of  staves  was  piled  upon 
defendant's  right  of  way  for  shipment,  and  defendant 
negligently  burned  them,  plaintiff  can  recover  only  for 
the  staves  destroyed,  and  cannot  recover  an  additional 
amount  to  compensate  him  for  loss  by  reason  of  the  fact 
that  he  cannot  market  his  half  carload  remaining,  this 
loss  being  too  remote.- 

1 — ^Penny  v.  Atlantic  Coast  Line  2 — Yazoo  &  M.  V.  E.  Co.  v.  Cox, 

R.    Co.,    (1910)    153    N.    Car.    296,  (1917)   114  Miss.  49,  74  So.  779. 
69  S.  E.  238,  32  L.  B.  A.   (N.  S.) 
1209. 


16  LAW  OF  DAMAGES 

8.  Direct  and  Consequential  Damages. — Damages  are 
divided  into  two  classes, — direct  and  consequential. 
Direct  damages  are  assessed  in  compensation  for  in- 
juries that  are  immediately  and  closely  connected  mth  de- 
fendant 's  wrong.  The  causal  connection,  being  short  and 
direct,  is  easier  to  establish  than  in  cases  where  the 
injurious  result  is  not  inamediate.  In  a  suit  for  assault 
and  battery,  it  appears  that  plaintiff's  eyes  were  injured 
by  a  blow  from  the  defendant.  The  injury  to  plaintiff's 
eyes  was  direct  damage.  One  person  converts  another's 
horse.  The  loss  of  the  horse  to  the  owner  is  an  immediate 
result  of  the  conversion;  and  the  damages  assessed 
against  the  converter  for  the  loss  of  the  horse,  would 
be  called  direct  damages.  Damages  for  immediate  and 
direct  results  are  so  obviously  recoverable,  that  the  field 
of  direct  damages  gives  little  trouble  as  to  legal  prin- 
ciples. Direct  damages  can  always  be  recovered,  if  plain- 
tiff states  and  proves  a  cause  of  action  in  which  direct 
or  immediate  damage  is  included  at  all.^ 

Consequential  damages  include  all  damages  assessed 
for  injuries  that  are  not  direct  or  immediate.  Not  all 
consequential  damage,  however,  may  be  recovered  for. 
The  mere  fact  that  certain  damage  is  consequent  upon 
a  certain  legal  wrong,  does  not  give  the  plaintiff  a  right 
to  recover  for  such  damage.*  Only  such  consequential 
damage  as  is  proximate  may  be  recovered  for.  Conse- 
quential damages  are  usually  to  be  recovered  only  upon 
being   specially   pleaded.     Because   such   damages    are 

3 — See  Vosburg  V.  Putney,  (1890)  4 — Pennsylvania  E,   Co,  v.  Wa 

78  Wis.  85,  80  Wis.  523,  47  N.  W.  bash,  etc.,  E.  Co.,  (1895)  157  U.  S 

99,  50  N.  W.  403,  14  L.  E.  A.  226,  225,    15    Sup.    Ct.    576,    39    L.    ed 

27  Am.  St.  Eep.  47;  Blake  v.  Lord,  682;   Lewis  v.  Flint   &  Pere  Mar 

(1860)    16  Gray   (Mass.)    387;   and  quette    Ey.    Co.,    (1884)    54    Mich 

Marsh  v.  McPherson,  (1881)  105  U.  55,    19    N.    W.    744,    52    Am.    Eep 

S.   709,  26  L.  ed.   1139.     See   also  790;  Dubuque  Wood  &  Coal  Asso 

article  by  the  writer,  "Confusion  ciation  v.  Dubuque,   (1870)    30  la 

of  the  Terms  'Prorximate'  and  'Di-  176. 
rect,'  "    86    Central   Law  Jorurnal 
224. 


CAUSE  AND  RESULT  17 

claimed  for  an  injury  that  is  not  direct  and  that  is  not 
such  as  always  necessarily  occurs  as  a  result  of  the  wrong 
set  up,  the  defendant  is  usually  held  to  be  entitled  to  be 
informed,  by  means  of  the  plaintiff's  specially  pleading 
it,  of  the  result  for  which  he  claims  consequential  dam- 
ages. 

9.  Proximate  and  Remote  Damages. — ^As  all  damages 
are  classified  as  direct  and  consequential,  so  are  they  all 
divided  into  two  other  classes,  marked  off  from  each  other 
along  another  line, — proximate  and  remote.  All  direct 
damage  being  proximate,  in  any  case  wherein  the  dam- 
age is  direct,  as  in  the  case  of  the  smashing  of  A's  nose 
by  B  in  an  ordinary  instance  of  assault  and  battery,  there 
is  no  opportunity  to  dispute  the  fact  that  the  damage  is 
proximate  to  the  wrong.  In  such  a  case  of  assault  and 
battery,  the  injury  to  A's  nose  is  a  direct  result  of  the 
battery  by  B ;  and,  as  all  direct  results  are  proximate,  it 
is  also  a  proximate  result  and  therefore  a  recoverable 
element  of  damage.  It  is  in  a  case  of  consequential  dam- 
age that  the  question  of  proximity  becomes  important 
and  frequently  all-determining  as  to  the  entire  case.  As 
has  been  said,  there  can  be  no  question  as  to  the  proximity 
of  any  direct  result;  but  consequential  damage  may  or 
may  not  be  proximate.  Many  of  the  consequential  re- 
sults of  a  wrong  are  so  remote  as  not  to  be  the  basis  of  an 
assessment  of  damages. 

It  is  one  of  the  most  important  legal  rules,  that  only 
proximate  results  of  defendant's  wrong  can  constitute  a 
basis  of  recovery  of  damages.  A  proximate  result  is  such 
a  result  as  is  not  separated  from  defendant's  wrongful 
act  by  any  independent,  efficient,  intervening,  causal  event 
that  has  broken  the  causal  connection  between  such  act 
and  such  result.^    Mere  lapse  of  time  or  intervention  of 

5 — "The  rule  limiting  the  recov-  act   complained   of  is   universally 

ery   of   damage    to    'the    natural  admitted,    and    the    extreme    diffi- 

and  proximate  consequence  of  the  culty  in  its  practical  application  is 
Bauer  Dam. — 2 


18  LAW  OF  DAMAGES 

space  does  not  prevent  the  result  from  being  proximate. 
Most  decisions,  both  in  contract  and  in  tort,  however,  re- 
quire that,  in  order  to  be  proximate,  so  as  to  give  a  right 
to  damages,  a  result  must  also  be  natural  and  probable; 
i.  e.,  that  the  result  must  have  been  such  as  should  have 
been  contemplated  as  a  probable  result  by  the  wrongdoer 
as  a  reasonable  man.  ** Natural,"  as  here  used,  seems  to 
mean  "normal."^  As  a  wrong  which  is  a  proximate 
cause  of  the  plaintiff's  injury  is  the  only  kind  of  cause 
regarded  in  law  as  giving  a  right  of  recovery  of  sub- 
stantial damages,  the  term  "legal  cause"  is  sometimes 
used  synonymously  with  "proximate  cause." 

Plaintiff's  entire  damage,  or  any  item  thereof,  is  too 
remote  to  allow  of  recovery,  if  it  is  separated  from  the 
defendant's  wrongful  act  by  an  independent,  efficient 
cause  which  breaks  the  causal  connection;  or,  according 
to  most  cases, — especially  if  the  action  is  based  upon  neg- 
ligence or  contract, — if  it  is  not  a  natural  and  probable 
result. 

quite  as  widely  conceded.  The  conclusion  we  have  reached,  it 
difficulty  results  not  from  any  de-  would  prove  quite  useless  to  refer 
feet  in  the  rule,  but  in  applying  to  them.  Damage  to  be  recoverable 
a  principle,  stated  in  such  general  must  be  the  proximate  consequence 
language,  to  cases  of  diverse  facts.  of  the  act  complained  of;  that  is, 
The  dividing  line  between  proxi-  it  must  be  the  consequence  that 
mate  and  remote  damages  is  so  in-  follows  the  act,  and  not  the  sec- 
distinct,  if  not  often  quite  invis-  ondary  result  from  the  first  comse- 
ible,  that  there  is,  on  either  side,  quence,  either  alone  or  in  combi- 
a  vast  field  of  doubtful  and  dis-  nation  with  other  circumstances." 
puted  ground.  In  exploring  this  — Dubuque  Wood  &  Coal  Associa- 
ground  there  is  to  be  had  but  little  tion  v.  Dubuque,  (1870)  30  la. 
aid  from  the  light  of  adjudicated  176. 

cases.  The  course  followed  in  6 — ' '  The  expression,  the  '  natu- 
cach  case,  which  is  declared  to  be  ral'  consequence,  *  *  *  by  no 
upon  one  side  orr  the  other  of  the  means  conveys  to  the  mind  an 
dividing  line,  is  plainly  marked  adequate  notion  of  what  is  meant; 
out,  but  no  undisputed  landmarks  'probable'  would  perhaps  be  a  bet- 
are  established  by  which  the  divid-  ter  expression." — Grove,  J.,  in 
ing  line  itself  may  be  precisely  Sharp  v.  Powell,  (1872)  L.  B.  7 
traced.  As  so  little  aid  is  derived  C.  P.  253. 
from  precedents  in  arriving  at  the 


CAUSE  AND  RESULT  19 

10.  Causation  in  Contract. — As  a  contract  right  is 
based  entirely  upon  an  agreement  of  the  parties,  in  con- 
tract cases,  damages  only  for  such  losses  as  were  within 
the  contemplation  of  the  parties,  at  the  time  of  making 
the  agreement,  as  natural  and  probable  consequences  of 
a  breach  of  the  contract,  may  be  recovered.^  In  contract, 
as  in  tort,  in  order  to  be  recoverable,  the  damage  must 
be  a  proximate  result  of  the  defendant's  wrong;  ^  but,  in 
contract,  the  question  of  proximate  cause  arises  less  fre- 
quently than  does  the  question  of  the  intention  of  the 
parties  as  to  liability  for  different  elements  of  damage. 
In  negligence  cases,  there  is  no  right  of  action  whatever, 
unless  defendant's  negligence  is  shown  to  have  been  a 
proximate  cause  of  plaintiff's  injury;  but,  in  contract 
cases,  proof  of  the  contract  and  its  breach  establishes  a 
right  of  action,  just  as,  in  a  trespass  case,  proof  of  the 
trespass  establishes  the  plaintiff's  right  to  maintain  his 
action.  Having,  however,  passed  the  threshold  of  the 
action,  we  usually  have  the  question  raised :  * '  What  items 
of  the  damage  suffered  by  the  plaintiff,  consequent  upon 
the  breach  of  the  contract,  can  be  regarded  as  having 
been  within  the  contemplation  of  the  parties  at  the  time 
they  entered  the  contractual  relation  f "  To  put  the  ques- 
tion another  way,  as  regards  each  item  of  damage,  we 
must  ask:  "Did  the  parties,  at  the  time  of  making  the 
contract,  contemplate  this  item  of  damage  as  a  natural 
and  probable  consequence  of  a  breach ! ' '  The  interpreta- 
tion of  the  contract,  as  to  this  point,  as  in  regard  to  other 
matters,  is  for  the  court. 

Where  there  is  delay  in  the  construction  of  a  ship,  so 
that  it  starts  across  the  sea  at  a  later  time  than  was  in- 
tended, and  is  caught  in  a  hurricane  and  destroyed,  the 

7 — Hadley  v.  Baxendale,   (1854)  8 — Booth      v.     Spuyteu      Duyvil 

9  Exch.  341,  5  E.  R.  C.  502;  Prim-  Rolling  Mill   Co.,   (1875)    60  N.  Y, 

rose    V.    Western    Union    Tel.    Co.,  487. 
(1894)    154   U.   S.    1,    14  Sup.    Ct. 
1098,  38  L.  ed.  883. 


20  LAW  OF  DAMAGES 

loss  of  the  vessel  is  held  to  be  a  remote  and  unexpected 
consequence  of  the  delay  in  construction ;  ^  and  so,  where 
a  carrier  delays  in  the  forwarding  of  baggage,  its  delay 
is  not  the  proximate  cause  of  its  being  burned  in  transit.*^ 

In  many  cases,  it  happens  that  even  the  written  con- 
tract of  the  parties  is  not  absolutely  conclusive  as  to  what 
elements  of  damage  they  contemplated  as  being  natural 
and  probable,  there  being  proved  external  facts  which 
show,  without  contradiction  of  any  of  the  terms  of  the 
written  contract,  that  the  particular  item  of  damage  in 
question  was  or  was  not  in  the  contemplation  of  the 
parties  as  being  a  natural  and  probable  result  of  a 
breach."  The  finding  of  these  facts  is  for  the  jury,  under 
proper  instructions  from  the  court. 

The  contractor  is  always  liable  for  the  direct  result  of 
the  breach  of  his  contract,  which  is  the  loss  of  the  value  of 
the  contract  to  the  other  party.*^  Consequential  damage, 
such  as  loss  of  profits  which  the  plaintiff  had  expected 
to  make  and  certainly  would  have  made  by  a  sub-sale  of 
goods  to  a  third  party,  cannot  be  recovered  for,  unless 
it  is  shown,  either  by  interpretation  of  the  contract  itself 
or  by  proof  of  circumstances,  that  the  loss  was  in  the  con- 
templation of  the  parties  at  the  time  of  making  the  con- 
tract." 

9 — De   Ford   v.   Maryland    Steel  [breach  of  contract  of  sale,  where 

Co.,   (1902)   113  Fed.  72,  51   C.  C.  seller  knew  of  buyer's  gubcoutract] 

A.  59.  is  seeking  to  recover  for  some  lia- 

10 — French    v.    Merchants,    etc.,  bility  which  he  has  incurred  under 

Co.,   (1908)    199  Mass.   433,  85  N.  a   contract   made   by   him   with    a 

E.  424,  19  L.  R.  A.   (N.  S.)   1006.  third  person,  he  must  show  that  the 

11 — ^Devereux  v.  Buckley,  (1877)  defendant,   at   the   time    he   made 

34    O.    St.    16,    32    Am.    Rep.    342;  his     contract     with     the    plaintiff. 

Smith  V.  Green,  (1875)  1  C.  P.  Div.  knew   of   that   contract,   and    con- 

92,  23  E.  R.  C.  566.  tracted  on  the  terms  of  being  lia- 

12 — Leonard  v.  New  York,  etc.,  ble  if  he  forced  the  plaintiff  to  a 

Telegraph    Co.,    (1870)    41    N.    Y.  breach   of  that  contract.     If  such 

544,  1  Am.  Rep.  446.  subcontract  was  not  made  known 

13 — "Where    a    plaintiff    under  to  him  at  all  the  defendant  cannot 

such  circumstances  as  the  present  be  made  liable  for  what  the  plain- 


CAUSE  AND  RESULT  21 

The  rules  of  proximity  and  those  of  certainty  mnst  not 
be  confused.  Often,  when  certainty  is  lacking,  the  damage 
is  incorrectly  said,  for  that  reason,  to  be  too  remote. 
The  requirement  of  certainty,  however,  properly  per- 
meates the  whole  field  of  damages,  so  that  we  are  bound 
to  meet  it  in  cases  involving  proximity  and  remoteness, 
as  in  other  cases. 

The  following  statement  of  the  general  rule  as  to  dam- 
ages in  contracts,  is  made  by  Blackburn,  J. :  "  The  meas- 
ure of  damages  when  a  party  has  not  fulfilled  his  con- 
tract is  what  might  be  reasonably  expected  *  *  *  to 
flow  from  the  nonfulfilment  of  the  contract  in  the  ordinary 
state  of  things,  and  to  be  the  natural  consequences  of  it. 
The  reason  why  the  damages  are  confined  to  that  is,  I 
think,  pretty  obvious,  viz.,  that  if  the  damage  were  excep- 
tional and  unnatural  damage,  to  be  made  liable  for  that 
would  be  hard  upon  the  seller,  because  if  he  had  known 
what  the  consequence  would  be  he  would  probably  have 
stipulated  for  more  time,  or,  at  all  events,  have  used 
greater  exertions  if  he  knew  that  that  extreme  mischief 
would  follow  from  the  nonfulfilment  of  his  contract.  On 
the  other  hand,  if  the  party  has  knowledge  of  circum- 
stances which  would  make  the  damages  more  extensive 
than  they  would  be  in  an  ordinary  case,  he  would  be  liable 
to  the  special  consequences,  because  he  has  knowledge  of 
the  circumstances  which  would  make  the  natural  conse- 
quences greater  than  in  the  other  case. ' '  ^* 

11.  Causation  in  Tort. — In  tort,  the  formulation  and 
application  of  proper  rules  of  causation  gives  far  more 
trouble  than  in  contract.  This  is  due  partly  to  confusion 
of  the  principles  of  negligence  with  those  of  causation, 
and  partly  to  a  confusion  of  proximity  of  cause  in  torts 
with  naturalness  and  probability  of  result  in  contracts. 

tiff  baa   had   to  pay  under  it." —  14 — Cory    v.    Thames   Ironworks 

Grebert-Borgnis  v.  Nugent,   (1885)       &   Shipbuilding   Co.,   (1868)    L.  R. 
L.  B.  15  Q.  B.  Div.  85.  3  Q.  B.  181. 


22  LAW  OF  DAMAGES 

Circumstances  of  tort  cases  vary  widely,  and  a  rule  of 
proximate  cause  or  result,  that  seems  perfectly  sound  in 
the  case  in  the  decision  of  which  it  is  laid  down,  fails  to 
bear  close  scrutiny  when  examined  in  connection  with 
some  other  case,  in  which  some  circumstance  presents  an 
unexpected  obstacle  to  the  orderly  operation  of  what  had 
seemed  a  very  good  general  rule.  In  no  field  is  there  less 
of  uniformity  of  rule ;  and  in  no  part  of  the  law  has  there 
been  more  of  loose  thought  and  unfirm  grounding  of  de- 
cisions.^*^ 

It  is  somewhat  difficult  to  classify  the  holdings  on  the 
subject,  and  no  classification  of  these  cases  can  possibly 
be  made  on  any  sharp  and  clear  lines  of  demarcation ;  but 
the  decisions  may  be  placed  roughly  in  three  groups.  On 
account  of  ambiguity  of  expression  or  meagerness  of  the 
statement  of  principles,  it  is  impossible  or  nearly  im- 
possible to  classify  some  of  the  holdings  at  all.  All  de- 
cisions in  torts  require  that,  in  order  to  constitute  a  basis 
of  recovery  of  damages,  the  damage  must  be  a  proximate 

15 — '  *  Where  damages  are  claimed  the  application  of  such  rules, 
for  the  breach  of  a  contract,  it  has  Whether  the  extent,  degree,  and  in- 
been  said  that  the  nearest  appli-  tim^acy  of  causation  are  sufficient 
cation  of  anything  like  a  fixed  rule  to  bring  the  injurious  consequences 
is,  that  the  injury  for  which  com-  of  an  act  within  the  circle  of 
pensation  is  asked  should  be  one  those  wrongs  for  which  the  law 
that  may  be  fairly  taken  to  have  supplies  a  remedy,  still  remains 
been  contemplated  by  the  parties  the  great  question  to  be  deter- 
as  the  possible  result  of  the  breach  mined  in  each  case  upon  its  indi- 
of  contract.  Oockburn,  C.  J.,  in  vidual  facts.  That  the  subject  is 
Hobbs  V.  London  &  S.  W.  Eailway  one  beset  with  difficulties  is  con- 
Co.,  (1875)  L.  E.  10  Q.  B.  117.  In  spicuously  shown  by  the  great  num- 
tort,  they  must  be  the  legal  and  ber  of  cases  from  Scott  v.  Shep- 
natural  consequence  of  the  wrong-  herd,  (1772)  2  Wm.  Bl.  892  (where 
ful  act.  Sedgwick  on  Damages,  82,  Sir  William  Blackstone  was  unable 
and  cases  cited;  2  Gr.  Ev.  §§  252-  to  agree  with  the  court),  down  to 
256,  and  cases  cited.  But  an  ex-  the  present  time,  in  which  judges 
amination  of  the  numerous  cases  of  equal  learning  and  ability  have 
where  this  matter  has  been  care-  differed  as  to  the  application  of 
fully  and  learnedly  discussed,  rules  by  which  all  admit  they  are 
shows  that  the  intrinsic  difficulties  to  be  governed." — Oilman  v, 
of  the  subject  are  not  removed,  Noyes,  (1876)  57  N.  H.  627. 
although   they  may  be   aided,  by 


CAUSE  AND  RESULT 


23 


result  of  the  defendant's  wrong.    The  cases  of  our  three 
groups  simply  define  "proximate"  differently. 

The  first  group  treats  ''proximate"  as  meaning  sub- 
stantially ''proximate,  natural,  and  probable,"  and 
rigidly  holds  that  there  can  be  no  recovery  for  an  element 
of  damage,  unless  such  particular  element  was  reasonably 
to  be  expected  by  the  tortfeasor  at  the  time  of  committing 
the  tort, — reasonably  to  be  anticipated  as  a  natural  and 
probable  consequence.^®    It  is  in  this  group  of  cases  that 


16 — Pullman  Palace  Car  Co.  v. 
Barker,  (1878)  4  Colo.  344,  34  Am. 
Eep.  89.  For  criticism  of  this  ease, 
see  p.  55  note.  See  also  Hoag  v. 
Lakeshore,  etc.,  R.  Co.,  (1877)  85 
Pa.  293,  27  Am.  Eep,  653.  In  the 
latter  case,  a  recent  landslide  had 
thrown  the  defendant's  oil  train 
from  the  track.  The  oil  tanks 
burst,  and  the  odl,  becoming  ignited, 
flowed  down  into  a  creek,  just  then 
augmented  by  recent  rains.  Flow- 
ing down  the  creek,  the  burning 
oil  ignited  and  destroyed  the 
plaintiff's  buildings,  which  were 
300  or  400  feet  from  the  track.  No 
strong  case  of  negligence  was  made 
out;  perhaps  it  could  properly  be 
said  that  no  negligence  was  shown 
by  the  evidence;  but  the  court,  re- 
fraining from  a  determination  of 
this  point,  decided  in  favor  of  the 
defendant,  on  the  ground  that, 
even  granting  that  the  defendant 
was  negligent,  the  damage  to  the 
plaintiff  was  too  remote  to  warrant 
a  recovery.  The  strictness  of  the 
rule  laid  down  by  the  court  is 
shown  best  by  the  following  quo- 
tation from  the  decision:  "It 
would  be  unreasonable  to  hold  that 
the  engineer  of  the  train  could 
have  anticipated  the  burning  of 
the  plaintiff's  property  as  a  con- 
sequence  likely   to  flow   from   his 


negligence  in  not  looking  out  and 
seeing  the  landslide.  The  obstruc- 
tion itself  was  unexpected.  An 
engine  had  passed  along  within  ten 
minutes,  with  a  clear  track.  But 
the  obstruction  was  there,  and  the 
tender  struck  it.  The  probable  con- 
sequence of  the  collision,  such  as 
the  engineer  would  have  a  right 
to  expect,  would  be  the  throwing 
of  the  engine  and  a  portion  of  the 
train  off  the  track.  Was  he  to  an- 
ticipate the  bursting  of  the  oil- 
tanks;  the  oil  taking  fire;  the  burn- 
ing oil  running  into  and  being  car- 
ried down  the  stream;  and  the 
sudden  rising  of  the  waters  of  the 
stream  by  means  of  which,  in  part 
at  least,  the  burning  oil  set  fire  to 
the  plaintiff's  buildings?  This 
would  be  a  severe  rule  to  apply, 
and  might  have  made  the  defend- 
ants responsible  for  the  destruc- 
tion of  property  for  miles  down 
Oil  Creek."  As  the  author  has 
said  in  criticizing  this  case,  in 
83  Cent.  L.  J.  149  note,  "It  is 
interesting  to  note  the  remark  of 
the  court  to  the  effect  that  a 
different  rule  in  this  case  'might 
have  made  the  defendants  liable 
for  the  destruction  of  property 
for  miles  down  Oil  Creek.'  Even 
if  such  were  the  obvious  result 
of  a  holding  adverse  to  the  com- 


24  LAW  OF  DAMAGES 

we  find  it  most  evident  that  the  court  has  confused  rules 
of  contract  with  those  of  tort  and  has  often  hopelessly  in- 
termingled the  rules  for  determining  the  fact  of  negli- 
gence with  the  rules  for  ascertaining  the  fact  of  proximity 
of  cause  and  effect.  It  is  founded  upon  no  sound  prin- 
ciple and  is  not  the  view  of  most  courts  today.  Most  of 
the  cases  of  this  group  are  negligence  cases. 

The  second  group,  like  the  first,  holds  that  the  conse- 
quences, in  order  to  be  proximate,  must  be  natural  and 
probable,  but  puts  in  the  important  qualification  that,  in 
order  to  be  proximate,  the  particular  injury  need  not  be 
such  a  one  as  the  tortfeasor  might  be  said  to  have  had  in 
his  contemplation  at  the  time  of  the  commission  of  the 
tort,  but  that  it  is  sufficiently  natural  and  probable  if  it 
was  of  a  class  of  consequences  which  the  tortfeasor  might 
reasonably  be  said  to  have  had  in  contemplation."  This 
qualification  keeps  decisions  of  the  second  group  from 
arriving  at  some  of  the  wholly  absurd  conclusions  set 
forth  in  some  cases  of  the  first  group.  More  cases  may 
be  classified  as  falling  within  this  group  than  within  the 
two  others,  most  jurisdictions  now  following  substan- 

pany,    it   would   not    constitute   a  that   it   would   not   seem    that   it 

valid     argument     against    such    a  should  be  seriously  argued  that  it 

holding.      Distance    in    space,    and  should  have  any  influence  in  fram- 

lapse  of  time,  of  themselves,  with-  ing  a  rule  of  proximate  cause.   The 

out  any  independent,  efficient,  in-  language    of    the    court    indicates 

tervening    cause,    cannot    properly  plainly  that  no  rule  of  prorximate 

be   said   so   to   break    causal    con-  cause  must  be  applied  which  will 

nection   as   to   cut   off  a  right   of  be    too    severe   on  the   defendant, 

action."     The    case    seems   to    be  No  such  principle  is  law. 

based  entirely  upon  unsatisfactory  These  cases  seem  sufficiently  to 

reasoning,    placing    the    railroad's  illustrate  the  fantastic  workings  of 

nonliability  upon  the  grounds:  first,  the  rule  applied  in  the  first  group 

that  the  company's  servants  could  of  cases. 

not    have    foreseen    the    exact    in-  17 — ^Brown  v.  Chicago,  M.  &  St. 

jurious  results  which  the  plaintiff  P.    Ey.    Co.,    (1882)    54   Wis.    342, 

has  suffered;  and  second,  that  the  11    N.   W.   356,   41    Am.   Rep.   41; 

application     of    a    different     rule  Benedict  Pineapple  Co.  v.  Atlantic 

might  make  the  railroad's  liability  Coast  Line  R.  Co.,  (1908)   55  Fla. 

very  large.     The  grotesque  nature  514,  46  So.  732,  20  L.  E.  A.    (N. 

of  the  latter  ground  is  so  apparent  S.)  92. 


CAUSE  AND  RESULT  25 

tially  the  rule  stated  in  this  paragraph.  The  rule,  how- 
ever, is  not  logical,  for  it,  like  the  rule  set  forth  in  the 
first  group  of  cases,  treats  ''proximate"  as  meaning  not 
only  ** proximate,"  but  also  ''natural"  and  "probable;" 
nor  is  it  nearly  always  satisfactory  in  the  results  it  pro- 
duces. When  once  the  fact  of  defendant's  wilful  tort  or 
negligence  is  proven,  it  would  seem  that  inquiry  whether 
he  contemplated  the  injuries  resulting  to  the  plaintiff  or 
any  results  of  the  same  kind,  should  be  immaterial,  if  no 
independent,  efficient  cause  intervenes  between  the  de- 
fendant's wrong  and  the  plaintiff's  injuries.  To  hold 
that  the  defendant  is  liable  only  for  results  of  the  kind 
he  may  be  taken  to  have  expected  as  a  reasonable  man, 
leads  to  the  conclusion  that  there  must  be  cases  of  hor- 
rible wrong,  negligently  inflicted,  with  no  remedy  against 
the  wrongdoer,  merely  because  he  cannot  be  considered  to 
have  contemplated  such  injuries.  This  second  rule  is 
often  uncertain  and  confused  in  the  manner  of  its  ad- 
ministration, but  it  usually  brings  about  the  same  prac- 
tical net  results  as  does  the  more  logical  rule  administered 
in  cases  of  the  third  group  and  considered  in  the  next 
paragraph. 

The  third  group  of  cases  simply  takes  the  sound  and 
rational  view  that  "proximate"  means  "proximate,"  and 
that  only.  These  cases  consider  naturalness  and  proba- 
bility only  as  regards  the  fact  of  negligence  or  wilful 
wrong,  carefully  differentiating  between  the  rule  for  de- 
ciding whether  there  is  negligence  and  that  for  determin- 
ing what  consequences  of  the  negligence  shall  be  made 
the  basis  of  compensation.    In  Isham  v.  Dow,^^  the  Su- 

18 — (1898)    70   Vt.   588,  41   Atl.  and  probable  consequences  did  not 

585,   45   L.   R.   A,   87,   67   Am.   St.  arise  in  the  Daniels  Case  [another 

Rep.  691.    Perhaps  the  clearest  ex-  Massachusetts      case      under      the 

position    of    this    view    thus     far  same    statute],    but   it    does   arise 

made  in  a  decision  is  the  following,  in  actions  at  commorn  law  and  un- 

from  a  recent  Massachusetts  case,  der  some   other    statutes   in   order 

under   a  workmen's   compensation  to  decide  whether  there  has  been 

act:   " The  inquiry  OS  to  reasonable  negligence.     Even   then   the   ques- 


26 


LAW  OP  DAMAGES 


preme  Court  of  Vermont  very  properly  says:  ''When 
negligence  is  established,  it  imposes  liability  for  all  the 
injurious  consequences  that  flow  therefrom,  whatever 
they  are,  until  the  intervention  of  some  diverting  force 
that  makes  the  injury  its  own,  or  until  the  force  set  in 
motion  by  the  negligent  act  has  so  far  spent  itself  as 
to  be  too  small  for  the  law 's  notice.  But  in  administering 
this  rule,  care  must  be  taken  to  distinguish  between  what 
is  negligence  and  what  the  liability  for  its  injurious  con- 
sequences.    On  the  question  of  what  is  negligence,  it  is 


tion  ia  not  whether  'the  conse- 
quence is  a  reasonable  and  prob- 
able one,'  but  whether  harm  to 
some  one  of  the  same  general  kind 
as  that  sustained  by  the  plaintiff 
was  a  reasonable  and  probable  re- 
sult of  the  act  complained  of  as 
bearing  upon  the  ultimate  question 
whether  there  was  negligence  on 
the  part  of  the  defendant.  Negli- 
gence may  be  found  even  though 
the  particular  result  of  the  act  may 
not  have  been  susceptible  of  being 
foreseen.  (Citing  oases.)  Other  in- 
stances where  liability  is  not  pred- 
icated upon  negligence,  and  where 
therefore  there  is  no  occasion  tO" 
consider  in  any  aspect  natural  and 
probable  consequences,  are  actions 
to  recover  damages  arising  from 
fires  set  by  locomotive  engines. 
Bowen  v.  Boston  &  A.  E.  Co.,  179 
Mass.  524,  61  N.  E.  141;  from  a 
vicious  animal  knowingly  kept, 
Marble  v.  Ross,  124  Mass.  44,  1 
Am.  Neg.  Cas.  424;  from  dogs, 
Pressey  v.  Wirth,  3  Allen  191,  1 
Am.  Neg.  Cas.  143;  or  from  the 
breaking  of  impounded  water,  Ey- 
lands  V.  Fletcher,  L.  E.  3  H.  L. 
330.  So  far  as  concerns  conduct 
of  defendants,  liability  follows 
absolutely  in  such  cases  when  the 
particular   decisive   fact   is  shown 


to  exist." — In  re  Sponatski,  (1915) 
220  Mass.  526,  108  N.  E.  466,  8 
N.  C.  C.  A.  1025.  Althorugh  this 
is  a  ease  arising  under  a  statute, 
these  remarks  are  clearly  appli- 
cable to  common  law  cases,  just  as 
they  purport  to  be. 

"  'The  general  rule  in  tort,'  says 
Mr.  Sutherland  (3  Suth.  Dam. 
714),  'is  that  the  party  who  com- 
mits a  trespass,  or  other  wrongful 
act,  is  liable  for  all  the  direct  in- 
jury resulting  from  such  act,  al- 
though such  resulting  injury  could 
not  have  been  contemplated  as  the 
probable  result  of  the  act  done.' 
This  is  expressly  sanctioned  in  the 
Maryland  case  cited  where  a  can- 
cer was  the  intervening  cause. 
It  is  a  contradiction  to  say  that 
parties  contemplate — have  in  mind 
— things  orf  which  they  are  sup- 
posed to  be  unmindful." — McNa- 
mara  v.  Village  of  Clintonville, 
(1885)  62  Wis.  207,  22  N.  W.  472, 
51  Am.  Eep.  722. 

"The  inquiry  must  *  *  » 
always  be  whether  there  was  any 
intermediate  cause  disconnected 
from  the  primary  fault,  and  self  op- 
erating, which  produced  the  in- 
jury."— Milwaukee  &  St.  Paul  Ey. 
Co.  v.  Kellogg,  (1876)  94  U.  S. 
469,  24  L.  ed.  256. 


CAUSE  AND  KESULT  27 

material  to  consider  what  a  prudent  man  might  reason- 
ably have  anticipated ;  but  when  negligence  is  once  estab- 
lished, that  consideration  is  entirely  immaterial  on  the 
question  of  how  far  that  negligence  imposes  liability." 
Likewise,  where  it  is  necessary  or  expedient  for  the  plain- 
tiff to  show  the  wilfulness  of  the  defendant's  wrongful 
act,  the  fact  that  the  injury  to  the  plaintiff  would  be  a 
natural  and  probable  consequence  of  the  wrong,  which 
the  defendant,  as  a  reasonable  man,  must  have  foreseen, 
is  highly  pertinent  as  showing  the  wilfulness  of  the  de- 
fendant 's  wrongful  act.  In  cases  wherein  negligence  is  so 
gross  as  to  amount  to  evidence  of  malice  or  wilfulness, 
inherent  likelihood  that  the  injurious  consequences  would 
follow,  is  material  as  indicating  the  wanton  state  of  the 
defendant's  mind  at  the  time  of  the  occurrence  of  the 
negligence.  But,  just  as,  in  the  cases  based  upon  acts 
alleged  only  to  be  negligent,  one  must  not  confuse  rules 
for  ascertaining  the  fact  of  negligence  with  rules  for  as- 
certaining the  proximity  of  causal  connection  between 
the  negligent  act  and  the  damage,  so  here  one  must  not 
mix  principles  as  to  malice  or  wilfulness  with  those  of 
causation. 

The  tendency  of  most  courts  today  is  decidedly  away 
from  the  rule  stated  as  that  of  the  first  group;  and,  as 
many  cases  indicate,  there  is  an  inclination  either  to 
follow  the  cases  of  the  third  group  or  so  to  administer 
the  rule  of  the  second  group  as  to  give  substantially  the 
same  results  as  would  be  had  in  cases  of  the  third  group 
under  similar  circumstances.  Just  where  the  court  of  a 
given  state  stands  on  the  matter  is  sometimes  a  little 
difficult  to  ascertain,  as  slightly  varying  rules,  or  inter- 
pretations of  rules,  governing  the  matter,  are  sometimes 
handed  down  by  the  same  court  on  slightly  varying  states 
of  fact.  On  few  subjects  is  it  more  important  to  examine 
adjudicated  cases  in  the  state  in  which  a  new  case  arises, 
although  even  this  precaution  does  not  always  give  a  fair 
forecast  of  what  the  court  is  going  to  hold  in  the  particular 


28 


LAW  OF  DAMAGES 


case.  When  confronted  by  a  case  presenting  new  and  un- 
foreseen facts,  a  court  sometimes  finds  it  necessary  to 
modify  or  completely  overturn  a  rule  of  proximate  cause 
laid  down  in  an  earlier  case.^®    If  the  court  has  laid  down 


19 — An  interesting  case  on  neg- 
ligence and  proximate  cause  is  Ad- 
derley  v.  Great  Northern  E7.  Co., 
[1905]  2  I.  E.  378,  4  B.  R.  C.  293. 

"There  is  no  infallible  rule  by 
which  one  can  distinguish  between 
a  proximate  and  a  remote  cause." 
— Sociate  Nouvelle  D'Armement  v. 
United  States  S.  S.  Co.,  (1910)  176 
Fed.  890,  100  C.  C.  A.  360,  30 
L.  E.  A.  (N.  S.)   1210. 

"Few  questions  have  more  fre- 
quently come  before  the  courts 
than  that  whether  a  particular  mis- 
chief was  the  result  of  a  partic- 
nUat  default.  It  would  not  be 
useful  to  examine  the  numerous  de- 
cisions in  which  this  question  has 
received  consideration,  for  no  case 
exactly  resembles  another,  and 
slight  differences  of  fact  may  be 
of  great  importance.  The  rules  of 
law  are  reasonably  well  settled, 
however  difScult  they  may  be  of 
application  to  the  varied  affairs  of 
life." — ^Moody,  J.,  in  Atchison, 
etc.,  E.  Co.  V.  Calhoun,  (1908)  213 
U.  S.  1,  53  L.  ed.  671,  29  Sup. 
Ct.  321. 

Although  these  and  other  expres- 
sions of  judicial  opinion  force- 
fully and  advisedly  warn  us  against 
the  undiscriminating  use  of  rules 
and  precedents  in  determining 
proximity,  probably  no  judge  would 
say  that  the  most  carefully  formu- 
lated rules  of  causation  are  of  no 
value  whatever,  or  that  well-rea- 
soned cases  may  not  properly  be 
given  much  consideration  in  the 
decision  of  future  cases  very  sim- 
ilar as  to  facts. 


"The  general  rule  in  torts  ap- 
plied to  such  actions  as  those  of 
negligence  is  that  a  wrongdoer  is 
responsible  for  the  natural  and 
proximate  consequences  of  his  con- 
duct, and  what  are  such  conse- 
quences must  be  generally  left  for 
the  determination  of  the  jury. 
*  *  *  I  think  the  rule  must  be 
regarded  as  well  recognized  that 
in  an  action  brought  for  the  re- 
dress of  a  wrong  intentionally, 
willfully  and  maliciously  com- 
mitted, the  wrongdoer  will  be  held 
responsible  for  the  injuries  which 
he  has  directly  caused  even  though 
they  lie  beyond  the  limit  of  natural 
and  apprehended  results  as  estab- 
lished in  cases  where  the  injury 
was  unintentional.  * ' — Garrison  v. 
Sun  Printing,  etc..  Association, 
(1912)  207  N.  Y.  1,  100  N.  E. 
430,  Ann.  Cas.  1914  C  288,  citing: 
Milwaukee  &  St.  P.  Ey.  Co.  v.  Kel- 
logg, (1876)  94  U.  S.  469,  24  L. 
ed.  256;  Spade  v.  Lynn  &  Boston 
E.  Co.,  (1897)  168  Mass.  285,  47  N. 
E.  88,  60  Am.  St.  Eep.  393,  38  L. 
E.  A.  512;  Lehrer  v.  Elmore,  (1896) 
100  Ky.  56,  37  8.  W.  292;  Meagher 
V.  Driscoll,  (1868)  99  Mass.  281, 
96  Am.  Dec.  759;  Swift  v.  Dick- 
erman,  (1863)  31  Conn.  285;  Eten 
V.  Luyster,  (1875)  60  N.  Y.  252; 
Williams  v.  Underbill,  (1901)  71 
N.  Y.  Supp.  291,  63  App.  Div.  223. 

For  an  excellent  discussion  of 
the  difference  between  "immediate 
cause"  and  "producing  cause," 
see  Deisenreiter  v.  Kraus-Merkel 
Malting  Co.,  (1897)  97  Wis.  279, 
72  N.  W.  735.    The  proximate  cause 


CAUSE  AND  KESIJLT  29 

any  but  the  rule  in  Isham  v.  Dow,  above  mentioned,  it  is 
likely  to  find  it  necessary  to  vary  from  its  rule  in  order 
to  do  justice  in  some  cases  that  arise. 

12.  Intervening  Cause. — The  question  whether  the 
wrong  of  the  defendant  was  a  proximate  cause  of  the 
damage  to  the  plaintiff,  usually  resolves  itself  into  a  ques- 
tion whether  some  certain  event  or  condition  is  an  inde- 
pendent, efficient  cause  intervening  between  the  defend- 
ant's act  and  the  plaintiff's  loss.  Judicial  opinions  vary 
greatly  as  to  whether  certain  things  constitute  interven- 
ing, independent,  efficient  cause.  What  seems  to  one 
court  to  be  merely  a  link  in  an  unbroken  chain  of  causal 
connection,  entirely  dependent  upon  the  defendant's 
wrong,  set  in  motion  or  caused  to  operate  by  his  wrong, 
seems  to  another  court  to  be  an  absolutely  independent 
act,  event,  or  condition,  completely  severing  the  causal 
connection  between  the  defendant's  wrongful  act  and  the 
damage  to  the  plaintiff.  There  are,  however,  a  few  gen- 
eral principles,  which  are  usually  followed  in  deciding 
questions  of  intervening  cause. 

The  simplest  and  clearest  case  of  independent,  efficient, 
intervening  cause  is  the  wholly  voluntary  act  of  the  plain- 
tiff or  of  a  third  party  or  of  an  animal,  not  rendered 
necessary  or  likely  by  the  defendant's  wrongful  act.  Here 
is  no  difficulty.  The  defendant  wrongdoer  cannot  be  held 
liable  for  consequences  which  are  brought  about  by  the 
acts  of  free  agents  not  in  any  sense  impelled  by  the  acts 
of  the  defendant.2^ 

with  which  a  court  is  concerned  is  human  agency  has  intervened  be- 
not  necessarily  the  immediate  tween  the  fact  accomplished  and 
cause,  but  it  must  be  the  produc-  its  alleged  cause." — Societe  Nou- 
ing  or  efficient  cause.  velle  D  'Armement  v.  United  States 
20— "One  orf  the  most  valuable  S.  S.  Co.,  (1910)  176  Fed.  890, 
tests  to  apply  to  determine  whether  100  C.  C.  A.  360,  30  L.  E.  A.  (N. 
a  negligent  act  is  the  proximate  S.)  1210.  It  must,  however,  be 
or  remote  cause  of  an  injury  is  remembered  that,  when  once  it  is 
to  determine  whether  a  responsible  settled  that  no  human  agency  has 


30 


LAW  OF  DAMAGES 


Where  the  owner  of  a  building  negligently  permits  oil 
and  waste  to  be  stored  therein,  and  others  overturn  a 
lamp,  setting  fire  to  and  destroying  the  building,  the 
owner's  negligence  is  not  the  proximate  cause  of  the  loss 
of  the  building.2* 

Under  the  doctrine  of  *' attractive  nuisance,"  the  per- 
son who  maintains  a  thing  likely  to  attract  small  children 
into  danger  may  be  held  liable  for  damage  resulting  to 
young  and  indiscreet  children  from  negligent  mainte- 
nance, where  they  are  lured  by  the  attraction  and  injured 
thereby.  The  act  of  the  child,  backed  only  by  his  imma- 
ture volition,  is  not  regarded  as  an  independent  efficient 
intervening  cause.^^ 

Defendant's  negligence  in  maintaining  a  loosened  mal- 
let in  connection  with  a  '  *  striking  machine  "  in  its  amuse- 


intervened  in  a  given  case,  the 
question  of  intervening  cause  is 
only  parly  settled,  as  it  is  still 
necessary  to  determine  whether  an 
act  of  Gad,  an  act  of  an  animal, 
or  an  accident,  presents  itself  as 
an  independent  intervening  cause. 

Acts  of  persons  as  intervening 
cause:  Bhad  v.  Duquesne  Light 
Co.,  (1917)  255  Pa.  409,  100  Atl. 
262,  L.  E.  A.  1917  D  864;  Vicars 
V.  Wilcocks,  (1806)  8  East  1,  103 
Eng.  Kepr.  244;  Chesapeake  & 
Ohio  Ry.  Co.  v.  Wills,  (1910)  111 
Va.  32,  68  S.  E.  395,  32  L.  R.  A. 
(N.  S.)  280;  Tisdale  v.  Norton, 
(1844)  8  Mete.  (Mass.)  388. 

Act  of  animal  as  intervening 
cause:  Hadwell  v.  Righton,  [1907J 
2  K.  B.  .345,  5  B.  R.  C.  115,  76 
L.  J.  K.  B.  N.  S.  891,  71  J.  P. 
499,  97  L.  T.  N.  S.  133,  23  Times 
L.   R.  548,   5  L.   G.   R.   881. 

"The  fact  that  between  the  de- 
fendant's fault  and  the  plaintiff's 
injury  there  are  intermediate  acts 
of  other  persons,  even  of  the  plain- 


tiff, will  not  render  the  injury  too 
remote  for  legal  contemplation  and 
redress,  if  the  intervening  acts 
are  not  wromgful,  and  either  natu- 
rally follow  upon  the  defendant's 
misconduct,  or  merely  furnish  the 
conditions  on  which  that  miscon- 
duct operates." — McCann  v.  New- 
ark &  S.  O.  R.  Co.,  (1896)  58  N. 
J.  Law  642,  34  Atl.  1052,  33  L. 
R.  A.  127. 

21 — Beckham  v.  Seaboard  Air 
Line  Ry.  Co.,  (1907)  127  Ga.  550, 
56  S.  E.  638,  12  L.  R.  A.  (N.  S.) 
476. 

22— Elwood  V.  Addison,  (1901) 
26  Ind.  App.  28,  59  N.  E.  47,  11 
Am.  Neg.  Rep.  496;  Indianapolis  v. 
Emmelman,  (1886)  108  Ind.  530,  9 
N.  E.  155,  58  Am,  Rep.  65;  Matt- 
son  v.  Minnesota  etc.  R.  Co., 
(1905)  95  Minn.  477,  104  N.  W. 
443,  70  L.  R.  A.  503,  111  Am.  St. 
Rep.  483,  5  Ann.  Cas.  498.  Com- 
tra:  Carpenter  v.  Miller,  (1911) 
232  Pa.  362,  81  Atl.  439,  36  L.  R. 
A.  (N.  S.)  932. 


CAUSE  AND  RESULT  31 

ment  park,  was  the  proximate  cause  of  plaintiff's  injury 
by  the  flying  off  of  the  head  of  the  mallet  when  he  at- 
tempted to  use  it.^^ 

A  carrier  failing  to  light  its  cars  and  badly  overcrowd- 
ing them  is  not  liable  for  the  robbery  of  a  passenger,  the 
proximate  cause  being  the  act  of  the  robber.^* 

A  carrier  wrongfully  carrying  a  passenger  past  his 
station  is  not  liable  for  injury  resulting  to  him  from  ex- 
posure to  an  unexpected  storm  during  his  walk  to  his 
home,  if  it  was  possible  for  him  to  protect  himself  by 
stopping  at  a  house,  the  proximate  cause  of  the  injury 
being  plaintiff's  voluntarily  exposing  himself  to  the 
storm.2^ 

The  act  of  an  animal  does  not  always  break  the  chain 
of  causation.  Where  the  negligence  of  the  defendant  is 
the  immediate  cause  of  an  act  of  an  animal,  which  act  in 
turn  causes  injury  to  the  plaintiff,  the  defendant  is 
usually  held  to  be  liable.  This  is  often  put  upon  the 
ground  that  the  act  of  the  animal  and  the  resulting  injury 
were  natural  and  probable  consequences  of  the  defend- 
ant's negligence, — a  kind  of  consequences  which  he  might 
have  foreseen  as  a  reasonable  man.^** 

Where  an  inanimate  agency,  not  set  in  motion  or  made 
possible  of  operation  by  defendant's  wrong,  is  the  imme- 
diate cause  of  the  injury,  the  defendant's  wrongful  act 
can  be  no  more  than  a  mere  remote  cause,  as  the  inani- 

23— Wodnik       v.       Luna      Park  24— Chancey  v.  Norfolk  &  W,  R. 

Amusement   Co.,    (1912)    69  Wash.  Co.,    (ISl?)    174    N.    Car.    351,    93 

638,  125  Pac.  941,  42  L.  R.  A.  (N.  S.  E.  834. 

S.)   1070.     The  act  of  the  plaintiff  25 — Garland     v.    Carolina,    etc., 

in  using  the  mallet  cannot  be  said  Ry.,    (1916)    172    N.    Car.    638,    90 

to  be  an   independent  intervening  S.    E.    779,    L.    R.   A.    1917  B    706; 

cause,  as  it  is  an  act  induced  by  Le    Beau    v.    Minneapolis,    St.    P., 

the  invitation  of  the  defendant  and  etc.,   R.    Co.,    (1916)    164   Wis.   30, 

expected  by  both  parties.     Ill  con-  159   N.    W.   577,   L.   R.   A.    1917  A 

sequences  of  negligence  of  the  de-  1017. 

fendant  in  the  maintenance  of  his  26 — Fake  v.  Addicks,   (1890)   45 

apparatus   are   both   probable   and  Minn,   37,   47  N.  W.  450,  22  Am. 

proximate.  St.  Rep.  716. 


32  LAW  OF  DAIVIAGES 

mate  agency  has  certainly  broken  the  causal  connection 
between  the  wrong  and  the  damage.  Some  of  the  most 
difficult  cases  are  those  in  which  a  negligent  delay  by  a 
carrier  has  caused  goods  to  suffer  the  effects  of  a  storm 
or  flood.  If  the  carrier,  knowing,  as  he  always  does,  that 
the  danger  of  accidental  destruction  will  be  increased  by 
keeping  the  goods  in  transit  for  an  unnecessary  length  of 
time,  negligently  delays,  thus  permitting  the  goods  to  be 
acted  upon  by  an  injurious  natural  agency,  which  other- 
wise could  not  have  reached  them,  it  would  seem,  on  prin- 
ciple, that  he  should  respond  in  damages.^'^  But  this  view 
is  not  always  taken.^^  The  question  of  naturalness  and 
probability  of  the  occurrence  of  such  an  intervening  cause 
is  given  great  weight  in  the  decision  of  many  cases. 
Where,  through  defendant's  wrong,  a  storm  or  a  freeze 
is  given  opportunity  to  injure  the  goods  of  plaintiff,  the 
question  whether  an  act  of  God  is  here  an  independent 
intervening  cause,  has  given  the  courts  much  difficulty; 
and  the  decisions  are  far  from  being  harmonious.  Most 
of  the  cases  involving  this  question  are  negligence  cases, 
and,  here  as  elsewhere,  it  is  essential  to  a  clear  under- 
standing of  all  the  matters  involved,  that  we  keep  the 
question  of  the  fact  of  negligence  carefully  distinguished 
from  the  question  of  causation.  If  the  defendant  should 
have  foreseen  that  his  conduct  might  result  in  exposing 
the  plaintiff's  goods  to  hazards  of  the  weather,  it  is 
reasonable  to  hold  that  he  has  been  negligent.    He  having 

27 — Green-Wheeler    Shoe    Co.    v.  question  being  whether  the  loss  is 

Chicago,  K.  I.  &  P.  Ry.  Co.,  (1906)  occasioned  by  the  act  of  God,  in 

130  la.  123,  106  N.  W.  498,  5  L.  which   ca«e  it  is   simply  regarded 

R.  A.  (N.  S.)  882.  as  coming  under  one  of  the  well 

28 — Memphis,     etc.,     B.    Co.     v.  recognized   exceptions  to  the  rule 

Reeves,    (1869)    10   Wall.    (U.    S.)  of  absolute  liability  of  a  common 

176,    19    L.    ed.    909.      In    the    or-  carrier  of  goods.    In  such  cases,  no 

dinary,   simple  instance  of  a  car-  question  of  the  carrier's  wrong  is 

Tier's    pleading    an    act    of    God,  involved;    it  is    only    a    question 

questions  of  negligence  and  inter-  whether  the  common  carrier's  ei- 

vening   cause,  such   as   those   here  traordinary     liability    coverB     the 

discussed,   do  not  arise,   the   only  loss  in  question. 


CAUSE  AND  RESULT  33 

been  negligent,  and  liis  negligence  having  been  proved  to 
be  the  efficient  cause  of  the  subjection  of  the  plaintiff's 
goods  to  the  elements,  it  follows  that  he  should  be  held 
liable  for  the  loss. 

Similar  in  principle  are  cases  wherein  fires  have  been 
negligently  set  by  the  defendant  and  driven  by  a  high 
wind  in  such  a  manner  as  to  do  damage  to  the  plaintiff 
or  his  property.  Clearly,  the  defendant  must  be  held 
liable,  if  the  occurrence  of  the  intervening  event  imme- 
diately causing  the  injury,  together  with  such  consequent 
injurj^,  should  have  been  foreseen  by  the  defendant  as  a 
natural  and  probable  result  of  his  wrong.^^ 

Where  a  municipality  negligently  permits  a  hole  to 
exist  in  a  sidewalk,  and  such  hole  fills  with  water,  which 
freezes,  and  the  resulting  ice  causes  a  pedestrian,  in  the 
exercise  of  due  care,  to  slip  and  be  injured,  it  would  seem 
that  there  is  no  independent  cause  intervening  between 
the  negligence  and  the  injury ;  ^^  but  the  law  is  sometimes 
held  to  be  otherwise.^ ^ 

In  some  instances,  the  defendant,  by  his  wrong,  has 
made  it  necessary  that  the  plaintiff*  or  third  persons  do 
certain  acts  for  the  purpose  of  avoiding  damage.  Such 
acts  are  not  independent  of  the  defendant's  wrong,  and 
damage  produced  by  an  act  done  for  the  purpose  of  avoid- 
ing injurious  consequences  of  such  wrong,  are  not  remote 
from  it.  Reasonable  acts  for  the  purpose  of  avoiding 
damages  do  not  break  the  chain  of  causation  between 
defendant's  wrong  and  the  damage  resulting  proximately 
from  such  reasonable  acts.  The  attempt  of  the  plaintiff 
or  of  a  third  person  to  stop  a  horse  which  has  been 

29— Milwaukee  &  St.  P.  By.  Co.  30— Adams    v.    Ohicopee,    (1888) 

V.   Kellogg,    (1876)    94   U.    S.    469,  147  Mass.  440,  18  N.  E.  231. 

24   L.    ed,   256;    Liming   v.   Illinois  31 — Chamberlain  v.  City  of  Osh- 

Central  R.  Co.,   (1890)   81  la.  246,  kosh,    (1893)    84    Wis.   289,   54   N. 

47   N.   W.    66;    Lillibridge    v.   Mc-  W.   618,  19  L.  B.  A.  513,  36  Am. 

Cann,   (1898)    117  Mich.  84.  75  N.  St.  Rep.  928. 
W.  288,  41   L.  B.  A.   381,  72  Am. 
St.  Bep.  553. 

Bauer  Dam. — 3 


34 


LAW  OF  DAMAGES 


frightened  through  defendant's  negligence,  does  not  make 
subsequent  injury  to  the  plaintiff's  person  or  property  by 
the  runaway  horse  a  remote  result  of  such  negligence.^^ 
Likewise,  where  the  wrong  of  the  defendant  has  necessi- 
tated a  surgical  operation  upon  the  plaintiff  and  such 
operation  has  resulted  in  injury,  it  has  been  held  that  de- 
fendant's  wrong  is  still  a  proximate  cause  of  such  in- 


88 


jury 

Where  plaintiff  in  a  personal  injury  case  used  ordinary 
care  in  the  selection  of  a  physician,  the  malpractice  of  the 
physician  in  treating  the  injury  is  held  not  to  be  such  an 
intervening  cause  as  to  break  the  chain  of  causal  connec- 
tion between  the  original  wrong  and  plaintiff's  final  condi- 
tion. It  is  said  that  **  the  injury  caused  by  the  malpractice 
would  not  have  occurred  but  for  the  original  injury, 
and  results  because  of  such  injuiy,  and  was  a  proxi- 
mate result  thereof. ' '  ^^    This  seems  to  be  a  correct  gen- 


32 — Griggs  V.  Fleckenstein, 
(18€9)  14  Minn.  81,  100  Am.  Dee. 
199.  See  also  Halesrap  v.  Gregory, 
[1895]  1  Q.  B.  561. 

33— Rettig  V.  Fifth  Ave.  Transp. 
Co.  Limited,  (1893)  6  Misc.  328, 
26  N.  Y.  Supp.  896.  So  held  also 
under  employers'  liability  act, 
Shirt  V.  Calico  Printers'  Associa- 
tion, Limited,  [1909]  2  K.  B.  51, 
3  B.  R.  C.  62,  78  L.  J.  K.  B.  N.  S. 
528,  100  L.  T.  N.  S.  740,  25  Times 
L.  R.  451,  53  Sol.  Jo.  430.  See  note 
on  "Accident  as  proximate  cause 
of  death  under  anesthetic,"  3  B. 
R.  C.  65.  If  plaintiff  has  exercised 
reasonable  care  in  securing  a  phy- 
sician, he  is  not  required  to  insure 
such  physician's  professional  skill 
or  his  "immunity  from  accident, 
mistake,  or  error  in  judgment." 
Stover  V.  Bluehill,  (1863)  51  Me. 
439;  Laeser  v.  Humphrey,  (1884) 
41  O.  St.  378,  52  Am.  Rep.  86. 
See    also:     Terre    Haute    &    In* 


dianapolis  R.  Co.  v.  Buck,  (1884) 
96  Ind.  346,  49  Am.  Rep.  168, 
where  malarial  fever  is  held  not 
an  independent  intervening  cause; 
Beauchamp  v.  Saginaw  Mining  Co., 

(1883)  50  Mich.  163,  15  N.  W.  65, 
15  Am.  Rep.  30,  similar  holding  as 
to  pneumonia;  and  Wieting  v. 
MiUston,  (1890)  77  Wis.  523,  46 
N.  W.  879,  where  it  is  so  held  as 
to  accidental  second  breaking  of 
plaintiff's  leg,  first  broken  wrong- 
fully by  defendant. 

34 — Hooyman  v.  R^eeve,  (Wis. 
1919)  170  N.  W.  282.  See  also: 
Pullman  Palace  Car  Co.  v.  Bluhm, 

(1884)  109  111.  20,  50  Am.  Rep. 
601;  Chicago  C.  R.  Co.  v.  Cooney, 
(1902)  196  111.  466,  63  N.  E.  1029; 
Goshen  v.  England,  (1889)  119 
Ind.  368,  21  N.  E.  977,  5  L.  R.  A. 
253;  Rice  v.  Des  Moines,  (1875)  40 
la.  638;  Stover  v.  Bluehill,  (1863) 
51  Me.  439;  McGarrahan  v.  New 
York,  N.  H.  &  H.  E.  Co.,  (1898) 


CAUSE  AND  RESULT  35 

eral  rule,  and  its  application  is  clear  in  cases  wherein  the 
physician  has  done  no  act  of  such  a  nature  as  to  constitute 
an  independent  inter\'^ening  cause;  but  it  is  submitted 
that  the  mere  question,  *' Would  the  loss  have  occurred 
but  for  defendant's  wrong?"  is  not  an  adequate  test  as 
to  proximate  cause.  To  make  the  answer  to  this  question 
the  one  determining  fact  in  deciding  the  legal  relation 
between  cause  and  effect,  is  to  make  possible  the  assess- 
ment of  damages  for  losses  extremely  remote  from  the 
wrong  complained  of.  Where  a  surgeon,  in  attempting 
to  cure  an  injury  wrongfully  caused,  negligently  operates 
on  the  wrong  side  of  the  patient's  body,  mistaking  him 
for  another  patient,  the  surgeon's  act  is  a  wholly  wrong- 
ful, independent  and  intervening  cause,  for  which  the 
original  wrongdoer  is  not  responsible,  although  it  would 
not  have  occurred  but  for  the  original  wrong.^^ 

Refusal  of  an  injured  person  to  submit  to  a  surgical 
operation,  which  might  or  might  not  have  saved  his  life, 
does  not  break  the  chain  of  causal  connection  between  his 
injury  and  his  death.  In  such  a  case,  there  is  no  proof 
that  such  refusal  was  even  a  contributing  cause  of  his 
death.^* 

If  plaintiff,  after  receiving  a  personal  injury,  has  at- 
tended to  such  duties  as  he  might  prudently  perform,  and, 
in  so  doing,  has  incurred  serious  injury,  the  person  who 
inflicted  the  original  wrong  is  still  liable  and  his  liability 
extends  to  the  total  amount  of  the  injury,  as  no  negligence 
of  plaintiff  has  broken  the  causal  connection.^^ 

171  Mass.  211,  50  N.  E.  610;  Pur-  Lyons  v.  Erie  E7.   Co.,   (1874)    57 

chase  v.  Seelye,  (Mass.   1918)    121  N.   Y.   489;    Loeser   v.   Humphrey, 

N.  E,  413;  Reed  v.  Detroit,  (1896)  (1884)  41  O.  St.  378,  52  Am.  Rep. 

108  Mich.  224,  65  N.  W.  967;  Tut-  86. 

tie  V.  I^armington,  (1876)  58  N.  H.  35 — Purchase    v.    Seelye,    (Mass. 

13;      Boynton      v.      Somersworth,  1918)   121  N.  E.  413. 

(1878)    58    N.    H.    321;    Batton    v.  36— Sullivan    v.    Tioga    R.    Co., 

Public  S.  C,  (1908)  75  N.  J.  Law  (1889)  112  N.  Y.  643,  20  N.  E,  569, 

857,  69  Atl.  164,  18  L.  R.  A.   (N.  8  Am.  St.  Rep.  793. 

S.)    640,    127    Am.    St.    Rep.    855;  37— Batton     v.     Public     Service 


86  LAW  OF  DA:\IAGES 

Quick  and  uncontemplated  acts  of  the  plaintiff  or  of 
third  persons,  sometimes  practically  involuntary,  ren- 
dered likely  or  necessary  by  the  defendant's  wrong,  do 
not  constitute  an  independent  intervening  cause.^*  An 
involuntary  or  purely  accidental  act  of  the  plaintiff  is, 
under  some  circumstances,  held  not  to  break  causal  con- 
nection.^® 

Where  a  pre-existent  physical  condition  of  the  plain- 
tiff has  made  a  tortious  injury  by  the  defendant  more 
serious  than  it  would  have  been  if  his  condition  at  the 
time  of  the  infliction  of  the  injury  had  been  normal,  it  is 
sometimes  contended  that  such  pre-existing  condition  is 
an  independent  intervening  cause ;  but  the  overwhelming 
weight  of  authority  is  against  this  contention.^^  If  it  were 
held  that  the  weakness  or  diseased  condition  of  a  person, 
if  unknown  to  the  tortfeasor,  broke  the  causal  connection 
between  a  negligent  or  wilful  wrong  to  his  person  and 
the  consequences  thereof,  some  of  the  most  terrible  in- 
corporation, (1908)  75  N.  J.  Law  A.  540,  21  L.  E.  A.  289;  Tiee  v. 
857,  69  AtL  164,  18  L.  E.  A.  (N.  S.)  Munn,  (1883)  94  N.  Y.  621;  Brown 
640,  127  Am.  St.  Eep.  855.  v.   Chicago,  M.  &  St.  P.  Ey.  Co., 

38— Seott  V.  Shepherd,  (1773)  2  (1882)  54  Wis.  342,  11  N.  W.  356, 
W.  Bl.  892,  96  Eng.  Eepr.  525,  3  41  Am.  Eep.  41;  Vosburg  v.  Put- 
Wils.  (K.  B.)  403,  95  Eng.  Eepr.  ney,  (1890)  78  Wis.  85,  80  Wis. 
1124.  523,  47  N.  W.  99,  50  N.  W.  403,  14 

39 — Such  is  the  usual  quick  act  L.  E.  A.  226,  27  Am,  St.  Eep.  47. 
of  a  person  actuated  by  fright  Contra:  Pullman  Palace  Oar  Co. 
caused  by  an  explosion  or  fire  re-  v.  Barker,  (1878)  4  Colo.  344,  34 
suiting    from     defendant's     negli-      Am.  Eep.  89. 

gence.     See  Gannon  v.  New  York,  Likewise,  under  workmen's  eom- 

N.  H.  &  H.  B.  Co.,  (1899)  173  Mass.  pensation  acts,  it  is  customary  to 
40,  52  N.  E.  1075,  43  L.  E.  A.  833,  allow  compensation  for  an  injury, 
5  Am.  Neg.  Eep.  613,  where  plain-  even  though  a  previous  weakness 
tiff  impulsively  and  unguardedly  of  the  workman  has  contributed  to 
tried  to  escape  from  a  car  in  which  such  injury,  provided  only  that  the 
a  blaze  had  started.  See  also  Wil-  latter  has  arisen  out  of  the  em- 
liamson  v.  St.  Louis  Transit  Co.,  ployment.  Bell  v.  Hayes-Ionia 
(1907)  202  Mo.  345,  100  S.  W.  Co.,  (1916)  192  Mich.  90,  158  N.  W. 
1072.  179;    Hartz    v.    Hartford    Faience 

40— Mann  Boudoir  Oar  Co.  v.  Co.,  (1916)  90  Conn.  539,  97  Atl. 
Dupre,  (1893)  54  Fed.  646,  4  C.  C.      1020. 


CAUSE  AND  RESULT  37 

juries  ever  inflicted  by  a  wrongdoer  would  be  practically 
wrongs  without  remedies. 

The  mere  intervention  of  time,  space,  events,  physical 
objects,  or  conditions,  is  not  of  itself  an  intervening  cause, 
although  it  may  have  a  tendency  to  show  that  a  cause 
has  had  opportunity  to  intervene.^^  A  long  period  of 
time  may  elapse  between  defendant's  wrong  and  the  oc- 
currence of  the  resulting  loss  for  which  he  is  held  liable, 
distance  and  physical  objects  may  intervene  between  the 
place  of  the  wrongdoing  and  the  place  of  its  injurious 
effect,  many  events  contributing  or  not  contributing  to 
the  result  may  occur,  and  pre-existent  conditions  may  aid 
in  bringing  about  the  injury ;  but  these  do  not  necessarily 
break  causal  connection,  although  proof  of  them,  in  many 
instances,  will  tend  to  weaken  the  plaintiff's  case,  by 
affording  an  indication  that  some  intervening  and  inde- 
pendent event  is  the  juridical  cause  of  the  damage. 

13.  The  Doctrine  of  Last  Clear  Chance. — Just  as  de- 
fendant's negligence,  in  order  to  give  a  right  of  action, 
must  be  the  proximate  cause  of  damage  to  plaintiff,  so 
plaintiff's  contributory  negligence  is  not  the  cause  of  his 
injury,  in  a  legal  sense,  if  subsequent  negligence  of  de- 
fendant intervenes  and  proximately  causes  the  damage 
complained  of.  To  put  it  in  another  way,  if  defendant 
had  a  last  clear  chance  to  avoid  damage,  he  is  liable,  al- 
though contributory  negligence  of  plaintiff  has  occurred. 

Where  plaintiff  negligently  walked  upon  a  trestle  of 
defendant  railway  company  and  was  struck  and  injured 
by  defendant's  train,  although  defendant's  engineer  had 
a  last  clear  chance  to  avoid  the  accident  by  slowing  down 
or  stopping,  then  the  proximate  cause  of  the  accident  is 
the  failure  of  defendant's  engineer  to  exercise  due  care  to 
prevent  the  accident.^^ 

41 — See  Milwaukee  &  St.  P.  Ry.  42 — Began    v.    Carolina    Central 

Co.    V.    Kellogg,    (1876)    94    U.    S.      R.  Co.,  (1901)   129  N.  Car.  154,  39 
469,  24  L.  ed.  256.  S.  E.  808,  55  L.  R.  A.  418. 


38  LAW  OF  DAIMAGES 

Where  plaintiff  negligently  crossed  defendant's  electric 
railroad  track  ahead  of  a  car,  and  was  struck  and  injured, 
and  defendant's  motorman  had  a  last  clear  chance  to 
avoid,  defendant  is  liable.'*^ 

Where  plaintiff,  a  small  boy,  was  negligently  crossing 
a  street,  looking  at  pictures  of  noted  ball-players,  and  not 
paying  attention  to  his  own  safety,  and  defendant,  in  an 
automobile,  struck  and  injured  him  after  having  a  last 
clear  chance  to  avoid,  defendant  is  liable.** 

14.  Proximate  Cause  Under  Industrial  and  Civil  Dam- 
age Statutes. — Under  statutes  securing  a  right  of  action 
to  a  workman  against  his  employer  for  injuries  occurring 
in  the  course  of  the  employment,  the  change  from  the  com- 
mon law  is  sometimes  more  revolutionary  in  the  matter 
of  the  granting  of  the  right  of  action  in  the  beginning, 
and,  usually,  in  laying  down  more  or  less  arbitrary  sums 
to  be  paid  as  compensation  for  certain  injuries  sustained 

' '  In  some  cases  there  may  have  the  rule.  The  plaintiff  fettered  the 
been  negligence  on  the  part  of  a  front  feet  of  his  donkey,  and 
plaintiff  remotely  connected  with  turned  him  into  a  public  highway 
the  accident,  and  in  these  cases  the  to  graze.  The  defendant 's  wagon 
question  arises  whether  the  defend-  coming  down  a  slight  descent  at  a 
ant,  by  the  exercise  of  ordinary  'smartish'  pace,  ran  against  the 
care  and  skill,  might  have  avoided  donkey,  and  knocked  it  down,  the 
the  accident,  notwithstanding  the  wheels  of  the  wagon  passing  over 
negligence  of  the  plaintiff,  as  in  it..  The  poor  brute  meekly  closed 
the  oft-quoted  donkey  case,  Davies  its  wearied  eyes  and  gave  up  the 
V.  Mann.  There,  although  without  ghost,  an  apparently  immortal 
the  negligence  of  the  plaintiff  the  spirit  that  has  long  since  put  Ban- 
accident  could  not  have  happened,  quo's  ghost  to  shame.  From  such 
the  negligence  is  not  supposed  to  a  humble  beginning  arose  the 
have  contributed  to  the  accident  great  doctrine  of  the  'last  clear 
within  the  rule  upon  this  subject."  chance.'  "  —  Began  v.  Carolina 
— Tuff  V.  Warman,  (1857)  2  C.  B.  Central  R.  Co.,  supra. 
N.  S.   739.  43— Pilmer     v.     Boise     Traction 

"The  case  therein  cited  (Davies  Co.,   (1908)   14  Idaho  327,  94  Pac. 

V.  Mann,  [1842]   10  M.  &.  W.  546,  432,  15  L.  R.  A.  (N.  S.)  254. 

152  Eng.  Repr.  588),  in  which  the  44 — Deputy   v.   Kimmell,    (1914) 

plaintiff's  immortal  donkey,  by  its  73  W.  Va.  595,  80  S.  E.  919,  Ann. 

death,    established    a   world-known  Cas.  1916  E  656. 
name,  is  regarded  as  the  origin  of 


CAUSE  AND  RESULT  39 

by  workmen  receiving  certain  wages,  than  it  is  in  affect- 
ing the  operation  of  the  principles  of  proximate  cause. 
Where  a  statute  allows  a  right  of  action  for  injuries  re- 
ceived in  the  course  of  employment,  there  is  often  great 
liberality  in  deciding  that  an  accident  has  proximately  re- 
sulted from  the  employment,  some  of  the  cases  having 
allowed  compensation  for  injuries  sustaining  no  very 
close  causal  connection  with  such  employment ;  ^'^  but, 
where  a  statute  has  not  expressly  or  impliedly  abolished 
the  requirement  of  a  proximate  causal  connection,  it 
would  seem  that,  on  sound  principle,  the  rules  of  proxi- 
mate cause  remain,  as  of  old,  unshaken.^^  If,  however, 
the  legislature  sees  fit  to  abolish  the  defense  of  the  con- 
tributory negligence  of  the  employee,  the  possibility  of 
pleading  such  contributory  negligence  as  an  intervening 
cause  is  gone,  and  the  law  of  proximate  cause  is  thus  far 
affected.  There  is  one  feature  of  these  acts  which  affects 
the  basic  right  to  maintain  the  action,  and  that  is  the 
feature  dispensing  with  the  necessity  of  proving  the  neg- 
ligence of  the  employer ;  but  this  does  not  of  itself  make 
it  unnecessary  to  show  a  causal  connection  between  the 
employment  or  the  violation  of  the  statute  by  the  em- 
ployer, on  the  one  hand,  and  the  injury,  on  the  other. 
Where  a  statute  holds  an  employer  liable,  without  regard 
to  the  question  of  his  negligence,  the  question  of  proxi- 
mate cause  may  still  sometimes  arise,  but  the  question  is 
then  stripped  of  the  troublesome  possibilities  of  the  cases 
that  are  grounded  in  negligence.  In  negligence  cases,  the 
question  whether  the  defendant  was  negligent  is  too  often 
confounded  with  the  question  whether  there  is  proximity 
of  cause  and  result ;  but,  where  his  liability  is  made  abso- 
lute, by  statute,  when  certain  facts  appear,  we  have  one 

45 — See  In  re  Loper,  (Ind.  1917)  vening    causes    sometimes    assume 

116  N.  E.  324.  considerable  importance.     See  Bo- 

46 — Even   with   the   exceedingly  tana  v.  Joseph  F.  Paul  Co.,  (1916) 

liberal    constructions   placed    upon  224  Mass,  395,  113  N.  E.  358. 
such    statutes,    independent    inter- 


40  LAW  OF  DAMAGES 

of  the  clearest  cases  in  which  to  see  the  workings  of  rules 
of  causation.^^ 

A  common  type  of  modern  legislation  is  the  '  *  civil  dam- 
age act, ' '  permitting  recovery  from  a  liquor  dealer  under 
certain  circumstances.  ** Civil  damage  acts"  do  not  al- 
ways appear  in  just  the  same  form,  some  giving  relief 
for  injury  "in  consequence  of  the  intoxication,"  some  for 
injury  "by  reason  of  the  intoxication,"  some  for  injury 
"in  consequence  of  the  furnishing,"  and  others  for  injury 
"by  any  intoxicated  person."  ^^  Even  when  the  wording 
of  such  a  statute  is  closely  scrutinized  and  compared  with 
that  of  other  similar  statutes,  one  cannot  always  be  sure 
as  to  possible  holdings  of  courts  thereunder,  as  decisions 
on  identical  statutes  of  this  kind  sometimes  vary.  Some 
of  these  statutes  are  held  to  dispense  with  all  necessity 
of  showing  any  proximity  of  cause  and  result,  while 
others,  sometimes  worded  in  identically  the  same  manner, 
are  held  to  give  a  right  of  action  only  if  proximity  of 
causal  relation  is  established.*^  Where  the  result  must 
be  shown  to  be  proximate,  the  general  mode  of  determin- 
ing proximity  is  similar  to  that  existing  under  the  com- 
mon law. 

15.  Proximate  Cause  a  Question  for  the  Jury. — ^In  gen- 
eral, the  question  whether  a  given  result  is  proximate,  is 
for  the  jury.  "It  is  not  a  question  of  science  or  legal 
knowledge.  It  is  to  be  determined  as  a  fact,  in  view  of 
the  circumstances  of  fact  attending  it."  ^^    This  does  not 

47— In  re  Sponatski,  (1915)   220  Isaacson,  (1913)  178  Mich.  176,  144 

Mass.  526,  108  N.  E.  466,  8  N.  C.  N.    W.    508;    New    v.    McKechnie, 

C.  A.  1025.  (1884)   95  N.  Y.  632,  47  Am.  Rep. 

48— See  notes,   13  L.  B.  A.    (N.  89. 

S.)  1158,  and  50  L.  R.  A.  (N.  S.)  No  recovery  unless  intoxication 

858.  was    proximate    cause:      Horn     v. 

49 — ^Not  necessary  to  show  that  Smith,  (1875)   77  111.  381;   Stecher 

intoxication    was    proximate    cause  v.  People,    (1905)    217  El.   348,   75 

of  injury:     Bistline  v.  Ney,  (1907)  N.     E.     501;     Davis    v.     Standish, 

134  la.  172,  111  N.  W.  422,  13  L.  (1882)  26  Hun  (N.  Y.)  608. 

R.   A.    (N.   S.)    1158;   Heikkala  v.  50— Milwaukee  &  St.  P.  Ry.  Co. 


CAUSE  AND  RESULT  41 

mean,  however,  that  the  jury  is  absolutely  unrestricted  in 
its  findings  on  the  question  whether  certain  results  in  a 
given  case  are  proximate  to  the  defendant's  wrongful 
act.^^  The  verdict  of  the  jury  as  to  this  matter,  as  in  re- 
gard to  anything  else,  must  be  sustained  by  evidence ;  and 
it  must  not  be  the  product  of  mere  whim  or  caprice.  If 
there  is  no  evidence  upon  which  to  base  a  verdict  to  the 
effect  that  the  wrongful  act  was  the  proximate  cause  of 
the  result,  the  trial  court  should  instruct  the  jury  in  such 
a  manner  that  a  verdict  finding  proximity  of  cause  and 
result  where  there  can  be  no  such  proximity,  will  not  be 
rendered.  Neither  a  trial  court  nor  an  appellate  court, 
however,  can  properly  interfere  at  will  with  the  preroga- 
tive of  the  jury  in  this  case  any  more  than  in  any  other 
case,  and  it  is  only  where  the  jury  could  not,  on  the  evi- 
dence, properly  find  any  relation  of  proximate  cause  and 
result  that  there  should  be  a  peremptory  instruction  or  a 
setting  aside  of  the  verdict. 

CASE  ILLUSTRATIONS 

1.  A  crank  shaft  of  plaintiff's  engine  broke,  causing  their  mill 
to  be  stopped.  Defendant  carriers  agreed  to  transport  the  shaft 
to  the  factory,  where  it  was  to  be  used  as  a  pattern  for  a  new 
one ;  but  defendants  were  not  informed  that  a  delay  would  result 
in  a  loss  of  profits  at  the  mill.  The  shaft  was  so  delayed  by  de- 
fendants that  the  new  shaft  reached  plaintiff 's  several  days  late, 
the  delay  causing  plaintiffs'  mill  to  remain  idle  for  several  days. 
Held,  that  profits  cannot  be  t^ken  into  consideration  at  all  in 
estimating  the  damages.  Such  consequences  would  not  have  oc- 
curred in  the  great  multitude  of  cases  of  the  kind ;  and  no  notice 
of  the  special  circumstances  had  been  given  to  the  defendants.^^ 

2.  A  contracts  to  sell  to  B  an  article  of  limited  production,  not 
easily  bought  in  the  market,  but  supplies  B  with  an  inferior 

V.  Kellogg,  (1876)  94  U.  S.  469,  24  (1869)   14  Minn.  81,  100  Am.  Dec. 

L.  ed.  256.  199;    Milwaukee  &  St.  P.  Ry.  Co. 

51 — Johnson  v.  Winona,  etc.,  R.  v.  Kellogg,  supra, 
Co.,   (1865)    11  Minn.  296,  88  Am.  52— Hadley  v.  Baxendale,  (1854) 

Dec.    83;    Griggs    v.    Fleckenstein,  9  Exch.  341,  5  E.  R.  C.  502. 


42  LAW  OF  DMIAGES 

article.  B  may  recover  for  such  l(»s  as  he  has  suffered  in  his 
own  manufacture  because  of  the  breach ;  or  he  may  recover  the 
difference  between  the  contract  price  he  paid  the  vendor  and  the 
price  he  was  to  receive  from  his  own  vendees.  "This  is  a  loss 
which  springs  directly  from  the  non-fulfilment  of  the  con- 
tract. "^3 

3.  Vendor  fails  to  deliver  an  engine  to  vendee  within  the  time 
agreed  upon.  "The  proper  rule  for  estimating  this  portion  of 
the  damages  in  the  present  ease  was,  to  ascertain  what  would 
have  been  a  fair  price  to  pay  for  the  use  of  the  engine  and  ma- 
chinery, in  view  of  all  the  hazards  and  chances  of  the  business. ' ' 
Speculative  profits  are  not  allowed.  "The  damages  must  be 
such  as  may  fairly  be  supposed  to  have  entered  into  the  contem- 
plation of  the  parties  when  they  made  the  contract ;  that  is,  must 
be  such  as  might  naturally  be  expected  to  follow  its  violation; 
and  they  must  be  certain,  both  in  their  nature  and  in  respect  to 
the  cause  from  which  they  proceed. ' '  ^* 

4.  Defendants  contracted  to  supply  skins  to  plaintiff.  At  the 
time  of  making  the  contract,  plaintiff  informed  defendants  that 
he  was  about  to  complete  or  had  completed  a  contract  with  a  cus- 
tomer in  Paris,  and  that  he  would  use  the  skins  to  fulfill  such 
contract.  Defendants  broke  contract  by  not  supplying  skins. 
Plaintiff  was  unable  to  buy  skins  to  fulfill  his  Paris  contract. 
Plaintiff  may  recover  lost  profits.  Defendants  knew  of  the  sub 
contract,  so  that  the  profits  were  in  the  contemplation  of  the  par- 
ties at  the  time  of  making  the  contract.  Plaintiff  could  not  have 
avoided  the  damage,  as  he  could  not  purchase  similar  goods. ^' 

5.  Defendant  contracted  to  deliver  to  plaintiff  100,000  pounds 
of  Minie  bullets,  58-calibre,  U.  S.  Rifle  Musket,  knowing  that 
plaintiff  was  purchasing  the  bullets  to  fulfill  an  existing  contract 
with  the  State  of  Ohio.  The  bullets  as  specified  were  not  deliv- 
ered, but  bullets  of  all  calibres,  useless  for  the  purpose  intended, 
were  supplied  instead.  Plaintiff  recovers  the  profits  that  would 
have  accrued  to  him  upon  fulfilling  the  contract  of  re-sale,  and 
also  the  transportation  charges  plaintiff  has  paid  on  the  goods. 
"The  general  rule  is,  that  the  party  injured  by  a  breach  of  a 

53 — McHo«e    v.    Fulmer,    (1873)  55 — Grebert-Borgnis    v.    Nugent, 

73  Pa.  365.  (1885)  L.  E.  15  Q.  B.  85. 

54^-Griffin  v.   Colver,    (1858)    16 
N.  Y.  489,  69  Am.  Dee.  718. 


CAUSE  AND  RESULT  43 

contract,  is  entitled  to  recover  all  his  damages,  including  gains 
prevented  as  well  as  losses  sustained,  provided  they  are  certain, 
and  such  as  might  naturally  be  expected  to  follow  the  breach." 
Profits  on  re-sale,  and  transportation  charges,  were  in  the  con- 
templation of  the  parties  at  the  time  of  making  this  contract.^*^ 

6.  A  wool  dealer  delivered  to  a  telegraph  company  a  message 
to  Toland,  one  of  his  agents,  in  cipher,  without  telling  the  agent 
the  meaning  of  its  contents  or  the  possible  effect  of  an  incorrect 
transmission.  The  message  was  erroneously  made  so  to  read  as 
to  request  Toland  to  buy  500,000  pounds  of  wool.  In  compliance 
therewith,  the  agent  actually  bought  300,000  pounds,  on  which 
the  dealer  lost  $20,000.  The  dealer  can  recover  of  the  telegraph 
company  only  such  amount  as  he  paid  for  the  transmission  of  the 
message.  ' '  According  to  any  understanding  which  the  telegraph 
company  and  its  agents  had,  or  which  the  plaintiff  could  possibly 
have  supposed  that  they  had,  of  the  contract  between  these  par- 
ties, the  damages  which  the  plaintiff  seeks  to  recover  in  this  action, 
for  losses  upon  wool  purchased  by  Toland,  were  not  such  as  could 
reasonably  be  considered,  either  as  arising,  according  to  the  usual 
course  of  things,  from  the  supposed  breach  of  the  contract  itself, 
or  as  having  been  in  the  contemplation  of  both  parties,  when  they 
made  the  contract,  as  a  probable  result  of  a  breach  of  it."  ^'^ 

7.  Plaintiff  contracted  to  furnish  a  church  with  pews  by  a  cer- 
tain date,  and  further  agreed  to  pay  $10  per  day  as  liquidated 
damages  for  each  day  the  pews  were  delayed  beyond  the  time 
stated.  He  shipped  the  pews  by  defendant's  railroad,  giving  notice 
of  his  contract  with  the  church,  including  the  provision  for  li- 
quidated damages.  Defendant  broke  its  contract  by  being  24 
days  late  in  completing  the  transportation  of  the  pews.  In  the 
settlement  with  the  church,  plaintiff  allowed  a  deduction  of  $180 
for  the  delay.  Plaintiff  recovers  the  $180  of  defendant  railroad. 
The  loss  complained  of  was  a  natural  consequence  of  the  breach.''^ 

8.  Defendant  sold  plaintiff  a  cow,  warranting  her  free  from 
foot  and  mouth  disease,  a  malady  the  cow  really  had  at  the  time 
of  the  sale.     Plaintiff,  being  a  farmer,  placed  the  cow  with  his 

56 — ^Messmore  v.  New  York  Shot  58 — Illinois    Central    E.    Co.    v. 

&  Lead  Co.,  (1869)  40  N.  Y.  422.  Southern  Seating,  etc.,  Co.,  (1900) 

57— Primrose  v.  "Western  Union  104  Tcnn.  568,  58  S.  W.  303,  50  L. 

Tel.  Co.,  (1894)  154  TJ.  8.  1,  38  L.  R.  A.  729. 
ed.  883,  14  Sup.  Ct.  1098. 


44  LAW  OF  DAMAGES 

other  cows,  and  they  contracted  the  disease.  The  defendant  is 
liable,  not  only  for  the  loss  of  the  cow  sold,  but  also  for  the  loss 
of  the  other  cows,  if  he  knew  that  plaintiff  was  a  farmer,  so  that 
he  would  be  likely  to  place  the  cow  with  other  cows.^^ 

9.  Defendent  contracted  to  store  plaintiff's  goods  at  Kings- 
land  Road,  but  deposited  them  in  another  place,  where  they  were 
destroyed  by  fire.  In  plaintiff's  policy  of  insurance  on  the  goods, 
Eangsland  Road  was  specified  as  the  place  of  deposit,  and  so  the 
benefit  of  the  insurance  was  lost.  Plaintiff  can  recover  the 
amount  of  this  loss.  The  damage  is  not  too  remote.  The  bare 
possibility  that  the  loss  would  have  occurred  anyway  if  the 
wrongful  act  had  never  been  done,  cannot  be  set  up  by  the  de- 
fendant.^** 

10.  ' '  The  plaintiffs  took  tickets  to  be  conveyed  from  the  Wim- 
bleton  station  of  the  defendant's  railway-  to  Hampton  Court.  It 
so  happened  that  the  train  did  not  go  to  Hampton  Court,  and  the 
plaintiffs  were  taken  on  to  Esher  Station,  which  increased  the 
distance  which  they  would  have  to  go  from  the  railway  station  to 
their  home  by  two  or  three  miles. ' '  Held,  that  plaintiffs  can  re- 
cover for  their  inconvenience,  but  not  for  the  illness  of  the  fe- 
male plaintiff,  resulting  from  exposure  to  cold,  which  was  inci- 
dent to  the  walk  from  Esher  to  Hampton.  The  illness  "is  an 
effect  of  the  breach  of  contract  in  a  certain  sense,  but  removed 
one  stage;  it  is  not  the  primary  but  the  secondary  consequence 
of  it."«i 

59— Smith    v.    Green,    (1875)    L.  western  Ey.,  (1875)  L.  R.  10  Q.  B. 

R.  1  C.  P.  Div.  92,  23  E.  R.  C.  566.  111.     The  holding  that  the  illness 

Accord:      Sherrod      v.      Langdon,  was    too   remote    to   admit    of    re- 

(1866)  21  Iowa  518:    "The  ground  covery,  seems  unsound.    As  is  said 

orf   the  recovery  is,  that   the   loss  in      McNamara      v.      Clintonville, 

actually    happened,    while    defend-  (1885)  62  Wis.  207,  22  N.  W.  472, 

ants'  wrongful  act  was  in  opera-  51  Am.  Rep.  722,  the  Habbs  case  is 

tion — a   loss   attributable    to    their  "severely  criticised  and  narrowly 

wrong  or  fraudulent  act,  and  it  is  limited,  if  not  entirely  overruled" 

not  for  them   to  say,  we   did  not  by  McMahon  v.  Field,  (1881)  7  Q. 

know    plaintiffs    had    other    sheep,  B,    Div.   591.     In   the   latter   case, 

and  hence  did  not  contemplate  or  plaintiff  contracted    for   room  for 

undertake  to  be  liable  for  so  great  his  horses  in  defendant  *s  barn.    De- 

a  loss."  fendant     nevertheless    rented     the 

60 — Lillie   v.   Doubleday,    (1881)  same  space  to  a  third  person,  who 

L.  R.  7  Q.  B.  Div.  510.  turned  out  plaintiff's  horses,  which 

6] — Hobbs   v.   Lfondon   &   South-  resulted  in  their  taking  cold  before 


CAUSE  AND  RESULT  45 

11.  Defendants  contracted  to  name  to  plaintiff  a  good  stock- 
broker, but  negligently  named  a  broker  who  was  an  undischarged 
bankrupt  and,  was  dishonest.  Plaintiff,  relying  upon  defend- 
ant 's  statement,  sent  sums  of  money  to  the  broker  for  investment. 
The  broker  misappropriated  these  sums.  Defendants  are  liable 
for  plaintiff's  loss.  The  intervention  of  the  crime  which  directly 
caused  the  damage,  does  not  render  the  damages  too  remote.*'^ 

12.  Defendant  commits  a  battery  upon  plaintiff,  causing  the 
latter  to  become  subject  to  fits.  The  fits  are  a  direct  result  of 
the  battery.  63 

13.  In  a  collision  between  plaintiff  on  a  bicycle,  and  the  auto- 
mobile of  the  defendant,  plaintiff  received  slight  injuries.  Four 
or  five  weeks  later,  he  contracted  typhoid  fever,  and  it  appeared 
that  food,  water,  and  air  were  the  only  media  by  which  typhoid 
could  be  communicated.  A  physician  testified  that,  in  his  opin- 
ion, there  was  a  connection  between  the  accident  and  the  typhoid, 
but  did  not  explain  the  connection.  The  evidence  does  not  sus- 
tain a  verdict  that  takes  the  typhoid  into  account.^* 

14.  A  threw  a  lighted  squib  into  a  crowd.  B,  to  prevent  in- 
jury to  himself  and  to  the  goods  of  X,  threw  the  squib  away,  to- 
ward C,  who,  to  save  himself  and  his  goods,  also  threw  it  away, 
striking  D,  bursting  and  putting  out  his  eye.  A  must  respond 
in  damages  to  D.^^ 

plaintiff  could  provide  other  shel-  nor  probable  result  of  physical  in- 
ter for  them.  Defendant  was  held  jury  such  as  plaintiff  sustained,  and 
liable  for  the  injury  to  the  horses,  the  only  e\4dence  in  the  ease  is 
on  the  ground  that  their  expulsion  that  referred  to  of  Dr.  Hosmer  to 
and  consequent  injury  were  such  the  effect  that  there  was  a  connec- 
results  of  the  breach  as  should  tion  between  plaintiff's  sickneM 
have  been  contemplated  by  defend-  and  the  accident;  that  he  consid- 
ant  as  probable  results.  ered  this  all  of  the  time;   but  he 

62 — De  la  Bere  v.  Pearson,  Lim-  does  not  say  that  the  injury  caused 

ited,  (1907)    [1908]   1  K.  B.  280,  1  the   disease,   and  he   does  not   ex- 

B.  R.  C.  21,  77  L.  J.  K.  B.  N.  S.  plain  what  he  means  by  connection 

380,  98  L.  T.  N.  S.  71,  24  Times  between  the  illness  and  the  injury. 

L.  R.  120.  The    connection    between    the    dis- 

63 — Sloan  v.  Edwards,  (1883)  61  ease  and  the  injuries,  in  order  to 

Md.  89.  form  a  basis  for  damages,  cannot 

64 — Slack   V.   Joyce,    (1916)    163  be   left   to   surmise  or   conjecture, 

Wis.  567,  158  N.  W.  310.     "It  ap-  but  must  rest  upon  proof." 

pears  from   the  evidence   that   ty-  65 — Scott  v.  Shepherd,   (1773)   2 

phoid  fevet-  is  neither  the  natural  W.  Bl.  892,  96  Eng.   Repr.   525,  3 


46  LAW  OF  DAMAGES 

15.  X  railway  company  sold  A  a  ticket  purporting  to  entitle 
holder  to  travel  over  certain  railroads,  including  that  of  the  Y 
railway  company,  from  Omaha  to  New  York.  Y  had  given  X 
no  authority  to  sell  such  a  ticket.  Y  refused  to  honor  the  ticket, 
and  ejected  A  with  unjustifiably  violent  and  excessive  force,  for 
which  A  recovered  judgment  against  Y  for  $7,000.  Y  spent  over 
$13,000  in  defense  of  the  action  brought  by  A.  Y  cannot  recover 
from  X  its  expenditures  in  connection  with  A's  action.  Y  had 
a  simple  remedy,  which  it  had  applied — namely,  to  eject  A.  As 
between  the  two  companies,  that  closed  the  matter.  If  the  ejec- 
tion was  accompanied  by  unnecessary  force,  it  was  upon  Y's  re- 
sponsibility, and  X  cannot  be  held  responsible.®^ 

16.  Defendant  railroad  company's  servant  directed  plaintiff, 
a  passenger,  to  a  wrong  train.  Finding  that  he  was  being  car- 
ried in  a  wrong  direction,  plaintiff  tried  to  alight  while  the  train 
was  in  motion,  and  was  injured.  Held,  that  the  misdirection  by 
the  railroad  company  was  not  a  proximate  cause  of  his  injuries.®'^ 

17.  Plaintiff  was  mistakenly  directed  by  defendant  railway 
company's  servants  to  leave  the  train  at  a  point  some  distance 
from  the  station  at  which  he  intended  to  alight.  It  was  night, 
and  plaintiff,  in  attempting  to  make  his  way  to  the  station,  fell 
into  a  cattle-guard  and  was  seriously  injured.  Held,  that  de- 
fendant is  not  liable.  Defendant's  wrong  was  not  the  proximate 
cause  of  the  injury  of  plaintiff.  The  injury  is  held  to  be  "the 
result  of  pure  accident."  ^ 

18.  Defendant's  electric  ear  was  coming  down-grade,  at  a 
speed  of  40  to  50  miles  an  hour,  swaying  from  side  to  side. 
Plaintiff,  in  his  automobile,  was  coming  toward  defendant's  car, 
in  the  opposite  direction.  The  trolley  wheel  of  defendant's  car 
left  the  wire,  and  was  thrown  against  the  left  forward  wheel  of 

WUb.  (K  B.)   403,  95  Eug.  Bepr.  bnt  it  is  to  be  noticed  that,  in  the 

1124.  latter   case,   a  defective  platform, 

66 — ^Pennsylvania  R.  Co,  v.  Wa-  on  which  plaintiff  alighted,  is  in- 

bash,  etc.,  R.  Co.,  (1895)  157  U.  8.  volved. 

225,  39  L.  ed.  682,  15  Sup.  Ct.  576.  68— Lewis  v.  Flint  &  Pere  Mar- 

67 — Chesapeake  &  Ohio  Ey.  Co.  quette  Ey.  Co.,  (1884)  54  Mi^h.  55, 

v.  Wills,  (1910)   111  Va.  32,  68  8.  19  N.  W.  744,  52  Am.  Rep.  790.     A 

E.   395,  32  L.  E.  A.   (N.  S.)    280.  recent  case  in  accord  is  Brown  v. 

Seemingly    contra:      Newcomb   v.  Linville   River   Ey.    Co.,    (N.   Car. 

New  York  Central  &  H.  R.  R.  Co.,  1917)  94  8.  E.  431. 
(1904)  182  Mo.  687,  81  S.  W.  1069; 


CAUSE  AND  RESULT  47 

the  autoiiiobile,  causing  it  to  turn  sharply  to  the  right,  toward  a 
bank.  The  plaintiff,  expecting  that  his  machine  would  "turn 
turtle,"  jumped  out  and  was  injured.  Held,  that  this  is  a  case 
for  the  jury.89 

19.  Defendant's  car,  on  which  plaintiff  was  a  passenger,  par- 
tially left  the  track  and  was  approaching  a  bridge  over  a  river. 
Plaintiff  leaped  from  the  car  just  before  the  car  reached  the 
bridge,  and  was  injured.  The  leap,  if  a  reasonable  act,  such  as 
would  have  been  done  by  a  person  of  ordinary  prudence,  does 
not  break  causal  connection  between  the  derailment  and  plain- 
tiff's injury.'^  "^ 

20.  Plaintiff's  blind  horse,  harnessed  to  a  sleigh,  became  fright- 
ened, and  plaintiff,  on  account  of  the  presence  of  a  large  pile  of 
ashes  left  in  the  street  by  the  defendant  city  and  the  presence 
also  of  a  loaded  wagon  coming  in  the  opposite  direction,  had  to 
guide  his  horse  within  the  twelve  feet  remaining  between  the 
wagon  and  the  curb.  Plaintiff  was  unable  to  guide  his  horse 
with  precision,  and  so  the  cross-bar  of  his  sleigh  struck  a  hydrant- 
nozzle,  plaintiff  being  thrown  against  the  hydrant  and  injured. 
Held,  that,  the  heap  of  ashes  was,  at  most,  only  one  of  several 
proximate  causes  of  the  accident,  and  that  it  cannot  be  said  that 
it  was  the  cause  without  which  it  would  not  have  occurred.'^  ^ 

21.  Defendant's  chauffeur  left  defendant's  automobile  on  an 
incline,  with  engine  stopped  and  brake  set.  A  12-year  old  boy, 
passing  by,  rattled  the  brake,  releasing  it.  As  a  result,  the  auto- 
mobile struck  and  injured  plaintiff.  "The  proximate  cause  of 
the  injury  was  the  interference  of  the  boy,  over  whom  the  de- 
fendant had  no  control,  and  for  whose  act  it  was  not  respon- 
sible.'"^2 

22.  A  railroad  company's  night  watchman  at  a  freight-house 
was  supposed  to  be  required  to  see  that  all  doors  were  bolted, 
but  he  was  not  informed  of  this  duty.  A  doorman  of  the  com- 
pany had  failed  to  bolt  a  certain  door,  through  which  a  tres- 
passer later  escaped,  and,  while  doing  so,  shot  the  night  watch- 

69 — Hull    V.    Berkshire    St.    Ey.  71 — Ring    v.     City    of     Cohoes, 

Ca,   (1914)   217  Mass.  361,  104  N.  (1879)    77  N.  Y.  83,  33  Am.  Eep. 

E.  747.  574. 

70— La  Prelle  v.  Fordyce,  (1893)  73— Ehad  v.  Duquesne  Light  Co., 

4  Tex.  Civ.  App.  391,  23  S.  W.  453,  (1917)    255  Pa.  409,  100   Atl.  262, 

6  Am.  Neg.  Cas.  658.  L.  R.  A.  1917  D  864. 


48  LAW  OF  DA]MAGES 

man.  Held,  that  the  master,  the  company,  is  not  liable.  The 
failure  of  the  doorman  to  bolt  the  door  was  merely  a  condition 
making  entrance  into  the  building  less  difficult.  The  cause  of 
the  injury  to  the  night  watchman  was  the  unrelated  criminal  act 
of  the  trespasser.^^ 

23.  A  stranger  entered  the  office  of  the  defendant,  and  tried  to 
kill  the  defendant  by  means  of  a  bomb.  The  defendant  shielded 
himself  by  holding  the  plaintiff,  his  clerk,  between  himself  and 
the  exploding  bomb.  Plaintiff  was  thereby  injured.  Held,  that 
defendant  is  not  liable.  The  proximate  cause  of  the  injury  to 
the  plaintiff  is  held  to  be  the  wrongful  act  of  the  stranger,  and 
not  the  act  of  the  defendant.'^ 

24.  Defendant,  a  balloonist,  descended  into  plaintiff's  garden, 
drawing  to  him  a  crowd,  who  trod  upon  the  plants  of  plaintiff. 
Held,  that  plaintiff  may  recover  for  the  damage  done  by  the  bal- 
loon and  also  that  done  by  the  crowd.  These  were  all  natural 
and  probable  results.'^^ 

25.  Defendant  negligently  leaves  explosives  where  they  are 
easily  reached  by  children.  Not  being  old  enough  fully  to  com- 
prehend the  danger,  several  children,  including  the  plaintiff,  play 
with  the  explosive,  by  which  plaintiff  and  others  are  seriously 
injured.  Defendant  is  liable.  Although  an  intervening  cause 
brought  about  the  injury,  such  cause  was  set  in  motion  by  the 
defendant 's  negligence."^  ^ 

26.  Defendant's  fowls  were  in  the  road,  perhaps  wrongfully. 
A  dog  belonging  to  a  third  person  frightened  one  of  the  fowls, 
causing  it  to  fly  into  the  spokes  of  the  bicycle  of  plaintiff,  who 
was  riding  along  the  road.  Plaintiff  and  his  bicycle  were  in- 
jured by  the  resulting  fall.  Held,  that  defendant  is  not  liable. 
* '  The  negligence,  if  any,  of  allowing  the  fowl  to  be  there  was  not 
connected  with  the  damage. ' '  "^"^ 

73— Fraser  v.   Chicago,  E.  I.  &  R.  Co.,   (1905)   95  Minn.  477,  104 

P.  Ry.   Co.,   (Kan.  1917)    165  Pac.  N.   W.   443,   70   L.  R.  A.   503,   111 

831.  Am.  St.  Rep.  483,  5  Ann.  Cas.  498; 

74 — Laidlaw  v.  Sage,  (1899)  158  Folsom-Morris  Coal  Mining  Co.  v. 

N.  Y.  73,  52  N.  E.  679,  44  L.  R.  A.  DeVork,  (Okla.  1916)   160  Pac.  64. 

216.  77— Hadwell  v.  Righton,   [1907] 

75— Guille   v.    Swan,    (1822)    19  2  K.  B.  345,  5  B.  R.  C.  115,  76  L. 

Johns.    (N.  Y.)    381,   10   Am.   Dec.  J.  K.  B.  N.  S.  891,  71  J.  P.  499,  97 

234.  L.  T.  N.   S.   133,  23  Times  L.   B. 

76— Mattson   v.   Minnesota,  etc  548,  5  L.  G.  R.  881. 


CAUSE  AND  RESULT  49 

27.  The  driver  of  defendant's  horse  car  whipped  his  horses, 
causing  the  car  to  give  a  sudden  bounce.  Plaintiff's  wife,  a  pas- 
senger, was  jolted  off  the  platform  of  the  car,  alighting  on  her 
feet  unhurt.  A  moment  afterward,  she  was  struck  by  a  runaway 
horse,  knocked  down,  and  injured.  Held,  that  the  injuries  are 
not  a  proximate  result  of  her  being  jolted  from  the  car.  "The 
jolting  from  the  car  simply  landed  her  on  her  feet,  and  inflicted 
no  injury.  But  another  agency  intervened,  which  was  entirely 
independent  of  any  act  of  the  defendant,  and  that  agency  alone 
inflicted  the  injury  in  question."  '^'' 

28.  Defendant  knowingly  kept  a  vicious  dog,  upon  which 
plaintiff  accidentally  stepped.  The  dog  severely  bit  and  lacer- 
ated plaintiff's  leg.  Defendant  is  liable.  Plaintiff's  inadver- 
tance  in  stepping  upon  the  dog  did  not  constitute  an  efficient 
intervening  cause,  so  as  to  break  the  causal  connection  between 
the  negligence  of  the  defendant  in  not  restraining  the  animal, 
and  the  injury."^ ^ 

29.  Plaintiff,  for  no  justifiable  purpose,  kicked  defendant's 
dog,  which,  in  consequence  of  the  kick,  bit  plaintiff.  "If  the 
plaintiff  wantonly  irritated  and  aggravated  the  dog,  and  the  dog 
bit  him,  in  repelling  his  aggression,  and  not  from  a  mischievous 
propensity,  *  *  *  then  the  plaintiff  should  not  be  allowed 
to  recover  for  damages  caused  by  his  own  wrong. ' '  ^^ 

30.  Defendant  negligently  burned  a  canvas  cover  used  to  pro- 
tect plaintiff's  growing  pineapple  plants  and  fruit  from  injury 
by  cold  and  frost.  As  a  result,  the  plants  and  fruit  were  exposed 
to  cold  weather  and  injured.  A  declaration  setting  up  such  facts 
is  sufficient  on  demurrer.     "Results  that  follow  in  ordinary, 

78 — South-Side     Passenger     Ry.  son's  treading  on  the  dog's  toea, 

Co.  V.  Trieh,    (1887)    117  Pa.  390,  for  it  was  owing  to  his  not  hang- 

11  Atl.  627,  2  Am.  St.  Eep.  672.  ing  the  dog  on  the  first  notice,  and 

79 — Fake  v.  Addicks,  (1890)    45  the  safety  of  the  king's  subjects 

Minn.  37,  47  N.  W.  450,  22  Am.  St.  is    not    afterwards    to    be    endan- 

Rep.    716;    referring    to    Smith    v.  gered."      See    note    on    "Keeping 

Pelah,  (1745)   2  Str.  1264,  93  Eng.  of   animal    as   proximate    cause   of 

Repr.  1171,  as  saying  "that  if  a  injury,"  2  B.  R.  C.  29.     See  also 

dog  has  once  bit  a  man,  and  the  Muller  v.  McKesson,  (1878)   73  N. 

owner    thereof    with    notice    keeps  Y.  195,  29  Am.  Rep.  123,  which  re- 

the  dog,  and  lets  him  go  about  or  views  a  number  of  cases, 

lie  at  his   door,  an   action  lies   at  80 — Keightlinger  v.  Egan,  (1872) 

the  suit  of  the  person  who  is  bit,  65  HI.  235. 
though   it   happened   by  such   per- 
Bauer  Dam. — 4 


50  LAW  OF  DAJVIAGES 

natural,  continuous  sequence  from  a  negligent  act  or  omission, 
and  are  not  produced  by  an  independent  efficient  cause,  are 
proximate  results  of  the  negligence,  and  for  such  results  the 
negligent  party  is  liable  in  damages,  even  though  the  particular 
results  that  did  follow  were  not  foreseen.  "^^ 

31.  Goods  are  delivered  to  a  common  carrier  for  transporta- 
tion. Through  the  carrier's  negligence,  they  are  delayed,  by 
reason  of  which  they  are  subjected  to  a  sudden  flood  while  in 
transit,  and  are  destroyed  or  damaged.  The  carrier  is  liable. 
'  *  Now,  while  it  is  true  that  defendant  could  not  have  anticipated 
this  particular  flood  and  could  not  have  foreseen  that  its  negli- 
gent delay  in  transportation  would  subject  the  goods  to  such  a 
danger,  yet  it  is  now  apparent  that  such  delay  did  subject  the 
goods  to  the  danger,  and  that  but  for  the  delay  that  [they]  would 
not  have  been  destroyed ;  and  defendant  should  have  foreseen,  as 
any  reasonable  person  could  foresee,  that  the  negligent  delay 
would  extend  the  time  during  which  the  goods  would  be  liable 
in  the  hands  of  the  carrier  to  be  overtaken  by  some  such  casualty, 
and  would  therefore  increase  the  peril  that  the  goods  should  be 
thus  lost  to  the  shipper.  "^^ 

32.  Defendant,  carrier  of  logs,  negligently  delayed  in  the 
transportation  of  plaintiff's  logs.  Unusually  early  cold  weather 
came,  freezing  them  in  the  ice  of  the  river  in  which  they  had 
been  placed.  Freshets  in  December  and  in  the  spring  carried 
them  down  the  river  and  out  to  sea.  Held,  that  defendant 's  neg- 
ligence was  the  proximate  cause  of  the  loss,  that  even  the  unusu- 
ally early  freeze  was  not  an  independent  intervening  cause,  and 
that  unusually  large  freshets  were  not  such  cause,  if  the  loss 
would  likewise  have  occurred  during  an  ordinary  freshet.^^ 

81 — Benedict    Pineapple    Co.    v.  83 — Marsh     v.     Great    Northern 

Atlantic  Coast  Line  E.  Co.,  (1908)  Paper  Co.,  (1906)   101  Me.  489,  64 

55  Fla.  514,  46  So.  732,  20  L.  R.  A.  Atl.  844.     It  is  to  be  noticed  that 

(N.  S.)  92.  the  court  lays  stress  upon  the  fact 

82 — Green-Wheeler  Shoe  Co.  v.  that,  although  unusual,  the  early 
Chicago,  E.  I.  &  P.  Ey.  Co.,  (1906)  freeze  was  not  so  unusual  that  the 
130  la.  123,  106  N.  W.  498,  5  L.  possibility  of  it  should  have  been 
E.  A.  (N.  S.)  882.  Contra:  Denny  "eliminated  from  consideration  by 
V.  New  York  Central  R.  Co.,  (1859)  a  prudent  person  who  had  under- 
13  Gray  (Mass.)  481,  74  Am.  Dec.  taken  a  work  of  this  magnitude." 
645.  Authority  on  the  point  is  "Climatic  conditions  are  so  f re- 
well  divided.  quently    unusual    that    this     fact 


CAUSE  AND  RESULT  51 

33.  Defendant,  the  owner  of  a  steamboat,  contracted  to  carry 
plaintiff's  horses,  which  he  later  lost  by  the  sinking  of  his  vessel 
by  running  it  upon  the  mast  of  a  schooner  recently  sunk  in  a 
squall.  Defendant,  under  the  extraordinary  liability  of  a  com- 
mon earner,  is  liable.  In  this  case,  there  is  no  proximate  cause 
intervening  between  defendant's  acts  in  the  course  of  carriage 
and  the  loss.^* 

34.  Defendant's  steamer  negligently  pumped,  or  allowed  to 
drip,  into  a  harbor,  large  quantities  of  highly  combustible  fuel 
oil,  which  collected  under  a  wharf,  between  vessels  and  the  wharf. 
As  the  tide  began  to  come  in,  the  mass  of  oil,  matted  together 
with  debris,  moved  partially  out  from  under  the  wharf  and  sur- 
rounded the  steel  bark  of  plaintiff.  In  some  manner,  probably 
from  a  burning  cigar,  a  spark,  or  a  live  coal,  the  oil  on  the  water 
became  ignited,  causing  the  wharf  to  burn,  and  damaging  plain- 
tiff's vessel.  The  negligence  of  defendant's  steamer  was  the 
proximate  cause  of  the  damage.^  ^ 

35.  Defendant  railroad  company's  engine  set  fire  to  grass  in 
the  right  of  way.  A  high  wind  carried  the  fire  toward  the  bam 
of  X.  Y  helped  X  to  remove  his  horses  from  the  bam ;  but  the 
fire,  being  driven  to  the  barn  more  quickly  than  was  expected, 
severely  injured  Y  before  he  succeeded  in  escaping  from  the 
building.  Defendant  is  liable  to  Y.  Its  wrongful  act  is  the 
proximate  cause  of  Y's  injury .^^ 

36.  Fire  negligently  set  by  defendant  upon  property  of  a  third 
person,  burned  across  a  large  area  to  plaintiff's  property  and 
consumed  it.  Held,  that  defendant's  negligence  was  not  the 
proximate  cause  of  plaintiff's  loss,  as  the  property  of  other  per- 
sons intervened,  and  the  condition  of  the  intervening  properties 
intervened  as  a  cause.  It  was  further  held  that  the  question  of 
proximate  cause  was  for  the  court.^*^ 

must  be   anticipated  and   guarded  (1910)   176  Fed,  890,  100  C,  C.  A. 

against."     See    also    Cumberland,  360,  30  L.  E.  A.  (N.  S.)  1210.    Cf. 

etc.,  Co.  V.  Stambaugh,  (1910)  137  Hoag  v.  Lake  Shore,  etc.,  R.  Co., 

Ky.  528,  126  S.  W.  106,  31  L.  R.  A.  (1877)    85   Pa.   293,   27   Am.   Rep. 

(N.   S.)    1131,   and  L.  R.  A.  note  653. 

thereto.  86 — Liming  v.  Illinois  Central  R. 

84— Merritt  v,  Earle,   (1864)   29  Co.,   (1890)   81  la.  246,  47  N.  W. 

N.  Y.  115,  28  Am.  Dec.  292.  66. 

85 — Societe     Nouvelle     D'Arme-  87— Hoffman  v.  King,  (1899)  160 

ment   v.  United  States   S.   S.   Co.,  N.  Y.  618,  55  N.  E.  401,  46  L.  R.  A. 


52  LAW  OF  DAMAGES 

37.  Defendants  set  fire  to  grass  on  their  own  property.  Ow- 
ing to  a  change  in  the  wind,  defendants'  buildings  burned,  and 
also  plaintiff's,  the  fire  seeming  to  have  blown  to  them  from  de- 
fendant's buildings,  a  quarter  of  a  mile  away.  Held,  that  the 
question  of  proximate  cause  is  for  the  jury.^* 

38.  The  fire  department  was  unable  to  put  out  a  fire  in  plain- 
tiff's house,  because  defendant  railroad  company  had  wrongfully 
occupied  and  extended  a  river  bank,  thus  preventing  the  depart- 
ment from  obtaining  water  from  the  river.  Held,  that  defend- 
ant is  not  liable  for  plaintiff's  loss  by  fire.  Defendant's  acts  are 
said  to  "have  no  connection  with  the  fire,  nor  with  the  hose  or 
other  apparatus  of  the  fire  companies.  They  are  independent 
acts,  and  their  influence  in  the  destruction  of  plaintiff's  prop- 
erty is  too  remote  to  be  made  the  basis  of  recovery."  ^^ 

39.  Plaintiff  had  wood  deposited  on  a  levee,  accessible  only  by 
a  bridge  maintained  by  defendant  city.  The  bridge  became  im- 
passable, and  the  defendant  negligently  failed  to  repair  it. 
Plaintiff  was  therefore  unable  to  remove  its  wood,  which  was 
washed  away  by  a  flood.  Defendant  is  held  not  liable  for  the 
loss.  "All  that  can  be  said  is,  that  defendants'  negligence  caused 
plaintiff  to  delay  removing  the  wood ;  the  delay  exposed  the  wood 
to  the  flood,  whereby  it  was  lost.  Plaintiff's  damage,  then,  was 
not  the  proximate  consequence  of  the  acts  of  defendant  com- 
plained of,  but  resulting  from  a  remote  consequence  joined  with 
another  circumstance,  the  flood.  "^^ 

40.  Defendant  town  failed  to  keep  its  highway  in  repair. 
Plaintiff,  using  the  highway,  because  of  the  defects  therein,  went 
from  it  into  an  adjoining  field,  where  he  was  injured.  Defend- 
ant is  not  liable.  The  injury  is  not  a  proximate  result  of  de- 
fendant's negligence.^  ^ 

41.  A  city  failed  to  light  a  bridge.     Amid  the  darkness  and 

672,  73  Am.  St.  Rep.  715;  Van,  J.,  88— Nail    v.    Taylor,    (1910)    247 
and  Parker,  C.  J.,  dissenting.     This  111.  580,  93  N.  E.  359. 
case  is  not  generally  approved  or  89 — Bosch  v,  Burlington  &  Mis- 
followed    outside    New    York.      In  souri  R.  Co.,  (1876)  44  la.  402,  24 
Illinois   Central  R.    Co.   v.   Bailey,  Am,  Rep.  754. 

(1906)   222  HI.  480,  78  N.  E.  833,  90— Dubuque  Wood  &   Coal  As- 

the  facts  were  similar,  and  a  judg-  sociation    v.    Dubuque,    (1870)    30 

ment  for  the  plaintiff  was  affirmed,  la.  176. 

the  court  saying  that  a  prima  facie  91 — Tisdale  v.  Norton,  (1844)   8 

case  was  made  out.  Mete.  (Mass.)  388. 


CAUSE  AND  RESULT  53 

some  steam  from  a  locomotive,  so  dense  that  he  could  not  see 
ahead,  plaintiff's  chauffeur  ran  plaintiff's  automobile  into  a 
girder  dividing  the  driveway  on  the  bridge.  Held,  that  defend- 
ant's negligence,  if  any,  was  not  the  proximate  cause  of  the  in- 
jury to  the  automobile.^2 

42.  Defendant  city  negligently  permitted  a  hole  to  remain  in 
a  street.  A  wagon-wheel  fell  into  the  hole,  causing  a  doubletree 
to  become  unfastened  and  to  fall  against  one  of  the  team  of 
horses  hitched  to  the  wagon,  frightening  the  team  and  causing 
them  to  collide  with  the  plaintiff.  It  cannot  be  said  as  a  matter 
of  law  that  the  defendant  is  not  liable  for  plaintiff's  injuries. 
The  court  cannot,  in  this  case,  rule  that,  as  a  matter  of  law,  the 
negligence  of  the  city  is  not  the  proximate  cause  of  the  injuries 
to  the  plaintiff.93 

43.  Defendant  village  negligently  maintained  a  high  walk 
without  railings.  Plaintiff,  without  negligence  on  his  part, 
stepped  off  the  walk,  and  was  injured.  He  already  had  a  predis- 
position to  inflammatory  rheumatism.  Because  of  such  predis- 
position, his  injury  may  have  been  aggravated  and  prolonged. 
The  jury  has  a  right  to  include  in  its  verdict  such  increased  or 
additional  damages.®* 

44.  Defendant,  a  school  boy,  gave  the  shin  of  plaintiff,  another 
school  boy,  a  slight  kick.  Plaintiff's  leg  had  been  injured  50 
days  earlier,  but  was  now  recovering.  The  kick  revivified  mi- 
crobes already  in  the  leg  and  caused  a  destruction  of  the  bone 
through  the  activity  of  the  microbes,  so  that  plaintiff  would  never 
again  be  able  to  use  the  leg.    Defendant  is  liable.    *  *  The  wrong- 

92 — Gaines  v.  New  York,  (1915)  healthy,  were  liable  to  travel  upon 

215  N.  Y.  533,  109  N.  E.  594,  L.  R.  the  walk.     Under  ordinary  circum- 

A.  1917  C  203.  stances    the   infirm    and    diseased 

93 — Ft.     Worth      v.     Patterson,  would   have  no   difficulty  in   pass- 

(Tex.  1917)  196  S.  W.  251.  ing  over  the  walk  without  incur- 

94 — McNamara  v.  Clintonville,  ring  injury.  But  the  plaintiff, 
(1885)  62  Wis.  207,  22  N.  W.  472,  under  the  circumstances  stated,  as 
51  Am.  Rep.  722.  "It  is  not  found  by  the  jury,  incurred  the  in- 
likely  that  the  officers  of  the  vil-  jury  without  any  fault  on  his  part, 
lage  actually  contemplated  that  The  mere  fact  that  he  was  more 
the  injury  in  question  would  re-  susceptible  to  serious  results  from 
suit  from  the  defect  in  the  walk.  the  injury  by  reason  of  the  pres- 
They  must  have  known,  however,  ence  of  disease,  did  not  prevent 
that  all  classes  of  people,  infirm  as  lim  from  recovering  the  damages 
well   as   firm,   diseased   as   well   as  he  had  actually  sustained." 


54 


LAW  OF  DAMAGES 


doer  is  liable  for  all  injuries  resulting  directly  from  the  wrong- 
ful act,  whether  they  could  or  could  not  have  been  foreseen  by 
him."»5 

45.  The  servants  of  defendant  railway  company  directed  the 
plaintiffs  to  leave  defendant's  train,  in  the  night,  three  miles 
from  Mauston,  their  destination,  telling  them  that  it  was  Maus- 
ton.  Female  plaintiff  was  then  pregnant.  Plaintiffs  had  to 
walk  to  Mauston,  by  reason  of  which  female  plaintiff  became 
very  ill  and  had  a  miscarriage.  Defendant  is  liable  for  these 
injuries,  even  though  it  did  not  know  of  the  pregnancy.® ^ 

46.  An  employe,  at  the  time  of  receiving  a  severe  personal  in- 
jury through  the  negligence  of  defendant,  was  afflicted  with  a 
progressive  incurable  disease,  which  had  not  yet  advanced  to  the 
stage  of  producing  disability.  The  injury  greatly  aggravated 
the  disease,  so  that  the  employee  died  in  less  than  a  month  after 
his  injury.    Defendant  is  liable  under  the  common  law.®'^ 

47.  Defendant  company  negligently  permitted  its  sleeping  car 


95— Vosburg  v.  Putney,  (1890) 
78  Wis.  85,  80  Wis.  523,  47  N.  W. 
99,  50  N.  W.  403,  14  L.  R.  A.  226, 
27  Am.  St.  Eep.  47. 

96 — Brown  v.  Chicago,  M.  &  St. 
P.  By.  Co.,  (1882)  54  Wis.  342,  11 
N.  W.  356,  41  Am.  Rep.  41:  "The 
defendant  is  not  excused  because 
it  did  not  know  the  state  of  health 
of  Mrs.  Brown,  and  is  equally  re- 
sponsible for  the  consequences  of 
the  walk  as  though  its  employees 
had  full  knowledge  of  that  fact. 
*  *  •  Upon  the  findings  of  the 
jury  in  this  case,  it  appears  that 
the  defendant  was  guilty  of  wrong 
in  putting  the  plaintiffs  off  the 
cars  at  the  place  they  did;  that  in 
order  to  protect  themselves  from 
the  effects  of  such  wrong  they 
made  the  walk  to  Mauston;  that 
in  making  such  walk  they  were 
guilty  of  no  negligence,  but  were 
compelled  to  make  it  on  account  of 
the  defendant's  wrongful  act;  and 
that,  on  account  of  the  peculiar 
state  of  health  of  Mrs.  Brown  at 


the  time,  ehe  was  injured  by  such 
walk.  There  was  no  intervening 
independent  cause  of  the  injury, 
other  than  the  act  of  the  defend- 
ant. All  the  acts  done  by  the 
plaintiffs,  and  from  which  the  in- 
jury flowed,  were  rightful  on  their 
part,  and  compelled  by  the  act  of 
the  defendant.  We  think,  there- 
fore, it  must  be  held  that  the  in- 
jury to  Mrs.  Brown  was  the  direct 
result  of  the  defendant's  negli- 
gence, and  that  such  negligence  was 
the  proximate  and  not  the  remote 
cause  of  the  injury.  *  *  *  We 
can  see  no  reason  why  the  defend- 
ant is  not  equally  liable  for  an  in- 
jury sustained  by  a  person  who  is 
placed  in  a  dangerous  position, 
whether  the  injury  is  the  imme- 
diate result  of  a  wrongful  act,  or 
results  from  the  act  of  the  party 
in  endeavoring  to  escape  from  the 
immediate  danger.'* 

97— In   re   Bowers,   (Ind.   1917) 
116  N.  E.  842. 


CAUSE  AND  RESULT 


55 


to  catch  fire,  because  of  which  the  plaintiff,  a  female  passenger, 
then  iu  a  state  of  health  in  which  she  was  very  susceptible  to  in- 
jury by  exposure,  was  compelled  to  leave  the  car  scantily  clad, 
on  a  cold  night.  Serious  functional  disorders  resulted,  leading 
to  a  long  illness.  Held,  that  defendant  was  not  liable  for  the  in- 
juries to  plaintiff's  health,  as  they  were  not  a  proximate  result 
of  defendant's  negligence.^® 

48.  Plaintiff's  intestate,  while  so  drunk  as  to  be  physically 
and  mentally  incapable  of  taking  care  of  himself,  was  ejected 
from  defendant's  train,  in  a  cut,  with  ditches,  banks,  and  fences 
on  the  sides  of  the  track.  He  was  killed  by  a  later  train.  De- 
fendant is  liable.  The  ejection,  and  not  the  intestate's  drunk- 
enness, is  the  proximate  cause  of  his  death.^^ 

49.  Plaintiff,  so  drunk  as  to  be  almost  unconscious,  was  ejected 
by  defendant  from  its  train,  into  deep  snow,  when  the  tempera- 
ture was  8  or  10  degrees  below  zero.  As  a  result,  parts  of  plain- 
tiff's body  were  frozen,  necessitating  several  amputations.    De- 


98 — ^Pullman  Palaee  Car  Co.  v. 

Barker,  (1878)  4  Colo.  344,  34  Am. 
Kep.  89.  The  devious  and  dubious 
route  by  which  the  court  arrived 
at  this  conclusion  is  worthy  of  no- 
tice. In  the  court's  opinion,  it  is 
actually  argued  with  seriousness 
that  exposure  in  her  then  condition 
intervened  as  a  cause,  and  that  the 
defendant,  having  no  notice  of 
such  condition,  could  not  be  held 
liable  for  a  result  of  which  this 
unknown  state  of  health  was  an 
intervening  cause!  The  case  is 
sustained  neither  by  sound  legal 
principle  nor  by  common  sense.  As 
the  writer  has  said  in  an  article  in 
83  Cent.  L.  J.  148  (150),  "Happily, 
this  holding,  making  it  the  duty  of 
every  female  passenger  to  tell  the 
brakeman  or  conductor  of  any  dis- 
order she  may  at  the  moment  have, 
is  not  generally  law."  More  con- 
sonant vdth  justice  and  principle 
are  the  follo\ving  cases  contra: 
Brown  v.  Chicago,  M.  &  St.  P.  Ey. 
Co.,  supra,  denouncing  the  Barker 


case  as  being  "unsustained  by 
authority, ' '  and  * '  supported  by  the 
principles  of  neither  law  nor 
humanity;"  and  Mkititi  Boudoir 
Car  Co.  v.  Dupre,  (1893)  54  Fed. 
646,  4  C.  C.  A.  540,  21  L.  E.  A.  289. 
99 — ^Louisville  &  N.  E.  Co.  v. 
Ellis'  Adm'x,  (1895)  97  Ky.  330, 
30  S.  W.  979.  Not  so  where  con- 
tinued presence  of  deceased  on 
train  would  have  imperiled  other 
passengers  and  his  condition  was 
not  such  as  indicated  to  the  train 
crew  that  he  was  incapable  of  tak- 
ing care  of  himself,  since,  in  such 
a  case,  the  ejection  is  necessary 
in  discharge  of  the  carrier's  duty 
to  passengers,  and  "the  law  does 
not  exact  care  and  precaution 
against  the  death  of  one  from  re- 
mote causes,  or  self-inflicted, 
whose  conduct  has  afforded  legal 
grounds  for  his  expulsion."  Louis- 
ville &  N.  E.  Co.  V.  Logan,  (1889) 
88  Ky.  232,  10  S.  W.  655,  3  L.  E. 
A.  80,  21  Am.  St.  Eep.  332,  8  Am. 
Neg.  Cas.  294. 


56  LAW  OF  DAMAGES 

fendant  is  liable.     The  ejection  of  plaintiff,  under  the  circum- 
stances, was  the  proximate  cause  of  his  injuries.^*^^ 

50.  Defendant's  train  was  negligently  run  over  hose  which  was 
being  used  to  put  out  a  fire  in  plaintiff's  factory.  By  reason  of 
the  consequent  cutting  off  of  the  water  supply,  plaintiff 's  factory 
was  destroyed.  Defendant  may  be  held  liable.  The  advantage 
of  which  plaintiff  was  deprived  was  immediate.  Defendant's 
act  was  the  direct  and  efficient  cause  of  the  loss.^^^ 

51.  Defendant's  train  blocked  a  crossing,  keeping  plaintiff  ex- 
posed to  the  elements,  by  reason  of  which  he  became  ill.  Defend- 
ant is  held  liable.102 

52.  Plaintiff,  for  more  than  half  an  hour,  was  detained  by  de- 
fendant 's  train  on  a  crossing.  Then  a  second  engine  approached 
and  blew  off  steam,  frightening  plaintiff's  horse,  so  that  it  ran 
away,  to  the  injury  of  plaintiff's  person,  horse,  buggy  and  har- 
ness. The  obstruction  of  the  crossing  is  not  the  proximate  cause 
of  the  injuries.^ '^^ 

53.  Defendant  railroad  company  kept  its  crossing  blocked  for 
30  or  40  minutes,  keeping  a  physician  from  attending  plaintiff 
promptly  during  childbirth,  although  the  physician  requested 
defendant's  employees  to  open  the  crossing.  Plaintiff's  suffer- 
ing was  greatly  prolonged,  and  the  physician  found  it  necessary 
to  adopt,  in  delivering  plaintiff  of  the  child,  a  method  attended 
by  laceration.  Defendant  is  liable  for  plaintiff's  suffering  and 
injury,  its  negligence  being  the  proximate  cause  thereof.  It  is 
not  necessary  that  defendant 's  servants  should  have  contemplated 
that  this  particular  result  would  ensue ;  it  is  sufficient  that  they 
ought  to  have  anticipated  that  some  traveler  might  be  detained, 
and  that  injury  therefrom  might  result  to  the  traveler  or  to 
some  one  else.^®* 

54.  Defendant's  excursion  train  blocked  a  crossing  for  half 
an  hour  to  an  hour,  just  as  the  sun  was  setting,  detaining  plain- 
tiff and  her  daughter.     Negro  passengers   stepped   off  at  the 

100— Louisville,  C.  &  L.  R.   Co.  Co.  v.  Durfee,  (1891)  69  Miss.  439, 

V.  Sullivan,  (1884)  81  Ky.  624,  50  13  So.  697. 

Am.    Eep.    186,   8    Am,   Neg.    Cas.  103 — Stanton  v.  Louisville  &  N. 

286.  R.  Co.,   (1891)    91  Ala.  382,  8  So. 

101 — Metallic  Compression  Cast-  798,  11  Am.  Neg.  Cas.  66. 
ing  Co.  V.  Fitchburg  R.  Co.,  (1872)  104 — Terry  v.  New  Orleans,  etc., 

109  Mass.  277,  12  Am.  Rep.  689.  R.  Co.,  (1913)  103  Miss.  679,  60  So. 

102— Louisville,  N.  O.  &  T.  Ry.  729,  44  L.  R.  A.  (N.  S.)  1069. 


CAUSE  AND  RESULT  57 

crossing,  swore,  and  used  obscene  language,  fought,  and  fired  a 
pistol,  terrorizing  plaintiff  and  her  little  girl.  As  a  result  of 
the  delay,  plaintiff  had  to  drive  home  in  the  dark.  Becoming 
alarmed  at  the  danger  of  turning  over,  she  jumped  from  the 
buggy,  injuring  her  knee.  "The  negligence  was  not  the  proxi- 
mate cause  of  either  injury  complained  of."^*^^ 

55.  Defendant's  train  partly  blocked  a  crossing.  At  the  in- 
vitation of  defendant's  flagman,  plaintiff  tried  to  drive  his  gen- 
tle horse  across  the  small  part  of  the  crossing  remaining  open. 
The  horse  shied,  causing  the  buggy  to  collide  with  the  rear  end 
of  the  train,  throwing  out  and  injuring  plaintiff.  Defendant  is 
liable.  *  *  The  shying  of  the  horse  cannot  be  regarded  as  the  sole 
proximate  cause.  The  obstruction  which  had  been  placed  in  the 
highway  directly  contributed  to  the  accident,  and  the  jury  was 
justified  in  so  finding.  "^^*' 

56.  Plaintiff  was  riding  on  horseback  on  a  road,  which,  at  its 
intersection  with  defendant's  railroad,  was  deeply  cut,  as  was 
also  the  railroad,  preventing  persons  on  the  road  from  seeing 
trains  before  they  were  within  a  few  feet  of  the  rails.  Defend- 
ant, neglecting  its  statutory  duty,  failed  to  give  a  signal  of  the 
approach  of  its  train,  as  required  by  statute,  as  a  result  of  which 
plaintiff  was  within  15  or  20  feet  of  the  train  before  she  saw  it. 
Her  horse,  becoming  frightened,  ran  with  her  100  yards  or  more, 
and  threw  her  in  turning  a  curve,  and  dragged  her  a  short  dis- 
tance, injuring  her  severely.  The  appellate  court  refused  to  in- 
terfere with  a  verdict  for  plaintiff,  as  these  are  facts  from  which 
the  jury  was  entitled  to  find  that  the  negligence  was  the  proxi- 
mate cause  of  the  injury.^'*'' 

57.  While  plaintiff  was  riding  on  horseback  on  a  road  parallel 
to  the  defendant's  railroad,  defendant's  train  approached  a 
nearby  crossing  without  giving  the  signals  required  by  statute. 
Plaintiff's  horse  became  frightened  at  the  train,  which  was  going 
in  the  same  direction,  ran  away,  and  attempted  to  cross  the  rail- 
road at  a  crossing  in  front  of  the  train.     The  horse  collided  with 

105— Shields  v.  Louisville  &  N.  107— Illinois    Central    R.    Co.    v. 

R.  Co.,  (1895)  97  Ky.  103,  29  S.  W.  Mizell,  (1896)  100  Ky.  235,  38  S. 
978,  27  L.  R.  A.  680.  W.  5. 

106— Chicago  &  N.  W.  R.  Co.  v. 
Prescott,  (1893)  59  Fed.  237,  8  C. 
C.  A.  109,  23  L.  R.  A.  654. 


58  LAW  OF  DAJVIAGES 

the  train,  and  plaintiff  was  thrown  off  and  injured  by  the  colli- 
sion. Defendant  is  not  liable.  Defendant's  statutory  negligence 
was  not  the  proximate  cause  of  plaintiff's  injurj\  ''It  was  not 
the  failure  to  give  the  crossing  signals  that  caused  the  horse  to 
run  off,  or  that  resulted  in  the  injury  to  Conway. "  ^  *^ 

58.  Defendants  wrongfully  and  maliciously  sued  out  a  writ  of 
attachment  against  goods  of  plaintiff.  Held,  that,  in  the  partic- 
ular case,  damages  could  be  recovered  for  the  expenditures  ac- 
tually made  in  the  defense  of  the  suit,  the  depreciation  of  the 
value  of  the  stock  on  which  the  -wrongful  levy  had  been  made, 
and  also  the  injury  to  the  business  of  the  plaintiff  and  his  credit 
and  financial  reputation.  "In  actions  on  the  case  the  party  in- 
jured may  recover  from  the  guilty  party  for  all  the  direct  and 
actual  damages  of  the  wrongful  act  and  the  consequential  dam- 
ages flowing  therefrom.  The  injured  party  is  entitled  to  recover 
the  actual  damages  and  such  as  are  the  direct  and  natural  conse- 
quences of  the  tortious  act.  "^^^ 

59.  Plaintiff,  a  brakeman,  alighting  from  his  train,  slipped  on 
ice,  was  overbalanced  by  a  hot  box  cooler  which  he  was  carrying, 
and  was  struck  by  defendant's  switch  engine,  which  was  being 
negligently  managed.  Defendant's  negligence  was  the  proxi- 
mate cause  of  plaintiff's  injury.^^*' 

60.  Plaintiff,  a  passenger  awaiting  a  train  at  a  railroad  sta- 
tion of  defendant  company,  was  b-truck  by  the  dead  body  of  a 

108 — Conway  v.  Louisville  &  N.  County,    82    Kan.    708,    109    Pac. 

E.  Co.,  (1909)   135  Ky.  229,  119  S.  162).     The  defendant's  negligence 

W.  206.  See  able  dissenting  opinion  was    proximate    in    point    of    time 

of  Hobson,  J.  because    the    negligently    managed 

109 — ^Lawrence      v.      Hagerman  engine  struck  the  plaintiff  after  he 

(1870)  56  111.  68,  8  Am.  Eep.  674.  became     overbalanced,,    and     was 

110 — Rockhold  V.  Chicago,  R.  I.  proximate    in    causal    relation    be- 

&  P.  Ey.  Co.,  (1916)  97  Kan.  715,  cause,   without   it,   becoming  over- 

156  Pac.   775:     "The  defendant's  balanced  would  have  been  without 

negligence   was    clearly    the   prox-  injurious    consequence.     The    sub- 

imate   cause   of   the   injury.     The  ject  is  sufficiently  covered  by  two 

two    causes     contributing    to     the  decisions  of  this  court  in  which  ac- 

plaintiff's  injury  were  not  distinct  cidental    slipping    of    the    plaintiff 

and    independent    of    each     other  combined   with   negligence   of  the 

(Railway  Co.  v.  Columbia,  65  Kan.  defendant    produced    injury.     City 

390,  69  Pac.  388,  68  L.  R.  A.  399),  of  Atchison  v.  King,  9  Kan.  550, 

but  were  related  to  each  other  in  and  Barnett  v.  Cement  Co.,  91  Kan. 

their  operation    (Mosier   v.  Butler  719,  139  Pac.  484." 


CAUSE  AND  RESULT 


59 


woman  who  had  just  been  struck  and  killed  by  defendant's  loco- 
motive. There  was  some  evidence  indicating  that  defendant's 
engineer  had  rung  the  bell  or  blown  the  whistle  at  the  crossing 
at  which  the  woman  was  killed.  Held,  that  defendant  was  not 
liable  for  plaintiff's  injury.^^^ 

61.  A  drove  his  automobile  past  a  standing  street  car,  in  vio- 
lation of  statute,  striking  B,  an  alighting  passenger,  and  pushing 
him  against  C,  another  alighting  passenger,  thus  throwing  C  to 
the  ground  and  injuring  him.  A  is  liable  to  C.  The  unlawful 
driving  of  A  is  the  proximate  cause  of  the  injury.^^^ 

62.  Through  the  negligence  of  the  defendant,  a  door  fell  upon 
plaintiff's  intestate,  so  injuring  hira  that  he  had  to  be  removed 
to  a  hospital,  where  he  died  over  five  months  later,  of  shock  fol- 
lowing a  skillfully  performed  surgical  operation  rendered  neces- 


lll^Wood  V.  Pennsylvania  R. 
Co.,  (1896)  177  Pa.  306,  35  Atl. 
699,  35  L.  R.  A.  199,  55  Am.  St. 
Eep.  728.  The  conclusion  seems 
somewhat  questionable.  It  is  to 
be  noticed  that  naturalness  and 
probability  are  very  heavily 
stressed  in  the  following  extract 
from  the  case:  "Does  any  one 
believe  the  natural  and  probable 
consequence  of  standing  50  feet 
from  a  crossing,  to  the  one  side  of 
a  railrorad,  when  a  train  is  ap- 
proaching, either  with  or  without 
warning,  is  death  or  injury? 
*  *  *  Clearly,  it  was  not  the 
natural  and  probable  consequence 
of  its  neglect  to  give  warning,  and 
therefore  was  not  one  which  it  was 
boTind  to  foresee.  The  injury,  at 
most,  was  remotely  possible,  as 
distinguished  from  the  natural  and 
probable  consequences  of  the  neg- 
lect to  give  warning.  As  is  said 
in  Eailroad  Co.  v.  Trich,  117  Pa. 
399,  11  Atl.  627,  2  Am.  St.  Rep. 
672.  'Responsibility  does  nort  ex- 
tend to  every  consequence,  which 
may    possibly    result    from    negli- 


gence. 


See  Columbus  R.  Co.  v. 


Newsome,  (1914)  142  Ga.  674,  83 
S.  E.  506,  L.  R.  A.  1915  B  1111,  in 
which  the  defendant  negligently 
ran  its  electric  car  against  a  horse 
driven  by  a  third  party,  thrusting 
the  horse  against  the  plaintiff  and 
injuring  him.  It  was  held  that 
plaintiff's  injuries  were  a  prox- 
imate result  orf  defendant's  negli- 
gence. Possibly  the  circumstances 
of  the  two  cases  are  sufficiently 
different  to  justify  an  attempt  to 
distinguish  between  them,  the  im- 
pact being  a  little  more  direct  in 
the  Georgia  case.  Even  if  we  ac- 
cept the  requirement  of  the  Penn- 
sylvania court  in  Wood  v.  Railroad, 
practically  to  the  effect  that,  in 
order  to  hold  a  defendant  for  a 
consequence  of  his  negligence,  the 
particular  result  must  have  been 
possible  to  foresee,  we  can  per- 
haps reconcile  the  result  reached 
in  the  Wood  case  with  that  in  the 
Columbus  case;,  for  the  consequeneo 
in  the  latter  case  was  one  some- 
what more  likely  to  occur. 

112— Frankel  v.  Norris,  (1916) 
252  Pa.  14,  97  Atl.  104,  L.  R.  A. 
1917  E  272. 


60  LAW  OF  DAMAGES 

sary  by  his  injury.  At  the  time  of  his  injury,  intestate  was  32 
years  old,  strong  and  healthy,  and  had  never  been  sick.  Defend- 
ant is  liable  for  intestate's  death.  The  injury  was  the  cause  of 
the  death.113 

63.  A  workman 's  hand  was  so  badly  crushed  by  an  accident  in 
the  course  of  his  employment,  that  an  operation  had  to  be  per- 
formed. Ordinarily  the  operation  would  have  been  amputation, 
but  a  competent  surgeon  undertook  to  save  the  hand  by  a  double 
operation,  in  the  second  stage  of  which  the  workman  unexpect- 
edly died  under  an  anesthetic.  ''There  was  no  reason  for  ap- 
prehending death,  but  death  did  ensue. '  *  The  employer  is  liable 
for  the  death.  The  administration  of  the  anesthetic  was  not  a 
new,  efficient,  intervening  cause,  as  the  steps  taken  to  obviate  the 
consequences  of  the  accident  were  reasonable.^ ^^ 

64.  Deceased  employee  received  an  injury  through  a  splash  of 
molten  lead  into  his  eye.  As  a  result,  he  became  insane,  and 
obeying  an  uncontrollable  impulse,  without  conscious  volition  to 
produce  death,  leaped  from  a  window  and  was  fatally  injured. 
The  employer  is  liable.  "The  obligation  to  pay  compensation 
under  the  Workmen's  Compensation  Act  *  *  *  is  absolute 
when  the  fact  is  established  that  the  injury  has  arisen  'out  of 
and  in  course  of  the  employment.  It  is  of  no  significance 
whether  the  precise  physical  harm  was  the  natural  and  probable 
or  the  abnormal  and  inconceivable  consequence  of  the  employ- 
ment. *  *  *  The  inquiry  relates  solely  to  the  chain  of  cau- 
sation between  the  injury  and  the  death."  ^^^ 

65.  A  statute  prohibited  the  employment  of  boj^s  under  14 
years  of  age  in  coal  mines.  Defendant  employed  a  boy  under 
14  in  its  mine,  and  he  was  injured  there,  while  working  in  a  dan- 
gerous place  without  having  been  given  proper  instructions. 
Such  employment  constitutes  negligence  on  the  part  of  the  de- 
fendant, and  is  the  proximate  cause  of  an  injury  which  is  a  nat- 
ural, probable,  and  anticipated  consequence  of  the  non-observ- 
ance." "^ 


113— Rettig  V.  Fifth  Ave.  Transp.  B.  N.  S.  528,  100  L.  T.  N.  S.  740, 

Co.,    Limited,     (1893)     26    N.    Y.  25  Times  L.  R.  451,  53  Sal.  Jo.  430. 

Supp.  896,  6  Misc.  328.  115— In  re  Sponatski,  (1915)  220 

114— Shirt     V.     Calico    Printers'  Mass.  526,  108  N.  E.  466,  8  N.  C. 

Association,  Limited,   [1909]    2  K.  C.  A.  1025. 

B.  51,  3  B.  R.  C.  62,  78  L.  J.  K.  116— Griffith    v.    American    Coal 


CAUSE  AND  RESULT 


61 


66.  A  libels  B,  a  concert  singer  in  C's  oratorio.  B  therefore 
refuses  to  sing  for  C,  for  fear  of  a  bad  reception  at  the  hands  of 
the  public.  C  can  recover  nothing  of  A,  as  C  's  loss  of  B  's  serv- 
ices is  not  a  proximate  result  of  A's  wrong.^^'^ 

67.  In  an  action  for  assault  and  battery,  plaintiff  alleges  that, 
as  a  result  of  disability  caused  by  the  wrong,  he  lost  the  office  of 
surgeons'  mate,  to  which  he  would  have  been  appointed.  Held, 
too  remote  a  result  to  allow  of  recovery,  although  specially 
pleaded.^^^ 

68.  A  fraudulently  sells  to  B  a  horse  affected  with  glanders, 
a  disease  known  to  be  dangerous  to  human  beings.  C  has  charge 
of  the  horse  for  B  and  thereby  contracts  glanders  and  dies.  C  's 
death  gives  a  right  of  action  against  A.^^® 


Co.,  (1916)  78  W.  Va.  34,  88  S. 
E.  595.  The  case  holds,  however, 
that  liability  attaches,  not  to  all 
injuries  in  the  course  of  the  un- 
lawful employment,  but  only  those 
injuries  against  which  the  statute 
is  intended  to  guard.  The  line 
thus  drawn,  although  probably  nec- 
essary, is,  at  best,  shadowy  and 
indefinite,  making  necessary  the 
adjudication  of  each  kind  of  in- 
jury in  order  to  determine  whether 
it  falls  into  the  class  which  the 
statute   is   intended   to   prevent. 

117— Ashley  v.  Harrison,  (1793) 
1  Esp.  48. 

118 — Brown  v.  Cummings,  (1863) 
7  Allen  (Mass.)  507.  "The  rule  of 
law  is,  that  where  special  damages 
are  not  alleged  in  the  declaration, 
the  plaintiff  can  prove  only  such 
damages  as  are  the  necessary  as 
well  as  proximate  result  of  the 
act  complained  of;  but  where  they 
are  alleged,  they  may  be  proved 
so  far  as  they  are  prorximate,  though 
not  the  necessary  result.  1  Chit. 
PI.  (6th  ed.)  441;  2  Greenl.  Ev. 
§  256;  Dickinson  v.  Boyle,  (1835) 
17  Pick.  (Mass.)  78,  28  Am.  Dec. 
281.     As   the   declaration   in    this 


case  alleges  the  loss  of  the  office 
as  special  damage,  the  evidence 
was  admissible,  if  the  loss  can  be 
regarded  as  a  proximate  result  of 
the  assault  and  battery.  So  far 
as  we  have  been  able  to  find  au- 
thorities on  the  point  (for  none 
were  cited  on  behalf  of  the  plain- 
tiff), they  tend  to  show  that  it 
was  not   proximate,  but  remote." 

See  also  Boyce  v.  Bayliffe,  (1807) 
1  Camp.  58,  where  an  assault  and 
false  imprisonment  of  a  passenger 
by  the  captain  of  a  ship  were  held 
not  to  be  the  proximate  cause  of 
the  passenger's  quitting  the  ship 
and  taking  passage  on  another  ves- 
sel for  the  remainder  of  his  jour- 
ney. "That  a  man  may  tranship 
himself  and  throw  the  expense  of 
this  upon  another,  the  injury  must 
continue  down  to  the  moment  of 
his  leaving  the  first  ship,  and  he 
must  then  act  with  a  view  to  the 
preservation  of  his  life,  or  at  least 
from  a  reasonable  regard  to  his 
own  safety." 

119— State  V.  Fox,  (1894)  79  Md. 
514,  29  Atl.  601,  24  L.  K.  A.  679, 
47  Am.  St.  Rep.  424. 


CHAPTER  V 

Avoidable  Consequences 

16.  In  General. — A  plaintiff,  either  in  tort  or  in  con- 
tract, cannot  recover  for  such  consequences  of  the  def end- 
ant 's  wrong  as  the  plaintiff  could  have  avoided  by  the 
exercise  of  reasonable  prudence.^  "In  cases  of  contract, 
as  well  as  of  tort,  it  is  generally  incumbent  upon  an  in- 
jured party  to  do  whatever  he  reasonably  can,  and  to  im- 
prove all  reasonable  and  proper  opportunities  to  lessen 
the  injury. "  ^  * '  The  law  will  not  permit  him  to  throw  a 
loss,  resulting  from  a  damage  to  himself,  upon  another, 
arising  from  causes  for  which  the  latter  may  be  re- 
sponsible, which  the  party  sustaining  the  damage  might, 
by  common  prudence,  have  prevented. "^  ''There  is  a 
line  of  decisions  which  establish  the  doctrine  that,  where 
one  party  has  broken  an  executory  contract,  the  other, 
who  is  in  the  right,  cannot  go  on  indefinitely  as  if  the  con- 
tract stiU  were  unbroken,  but  is  bound  to  do  what  he 
reasonably  can  to  stop  the  damages  for  which  the  first 
party  will  be  liable  in  consequence  of  his  breach. ' '  ^ 
Where  plaintiff  sues  for  wrongful  obstruction  of  his 
drain,  which  he  could  have  removed  for  $25,  it  has  been 
held  that  he  can  recover  only  $25,  and  not  $100  for  dam- 
age caused  by  resulting  overflow.^    The  defendant  is  not 

1— Indianapolis,   etc.,  R.    Co.   v.  2— Sutherland    v.    Wyer,    (1877) 

Birney,   (1874)    71  HI.  391;   MiUer  67  Me.  64. 

V.    Trustees   of   Mariners'    Church,  3 — Miller   v.    Trustees    of    Mari- 

(1830)  7  Me.  51,  20  Am.  Dec.  341;  ners'  Church,  supra, 

Loker  v.  Damon,    (1835)    17   Pick.  4 — Keith  v.  De  Bussigney,  (1901) 

(Mass.)    284;    Clark   v.    Marsiglia,  179  Mass.  255,  60  N.  E.  614. 

(1845)    1    Denio    (N.  Y.)    317,   43  5— Lloyd  v.  Lloyd,  (1888)  60  Vt. 

Am.  Dec.  670.  288,  13  AtL  638.   Accord:  City  of 

62 


AVOIDABLE  CONSEQUENCES  63 

liable  for  the  destruction  of  an  article  which  could  easily 
have  been  removed  from  a  building  whose  destruction 
by  fire  he  has  negligently  caused.®  One  cannot,  after  re- 
ceiving a  personal  injury,  do  foolhardy  things  tending  to 
aggravate  the  injury  and  then  recover  damages  sufficient 
to  compensate  for  the  injury  in  its  aggravated  form. 
Where  a  plaintiff,  after  receiving  alleged  serious  per- 
sonal injuries  through  the  negligence  of  a  railroad  com- 
pany, walks  thirty-seven  miles,  driving  cattle,  takes  long 
trips  by  stage  and  by  train,  and  calls  no  physician  for 
about  ten  days  after  receiving  the  hurt,  and  his  work 
and  his  neglect  to  get  the  necessary  treatment  aggravate 
the  injury,  this  aggravation  cannot  increase  the  damages 
to  be  assessed  against  the  company/  Just  as  contribu- 
tory negligence,  in  tort,  bars  a  whole  cause  of  action,  so, 
when  once  a  cause  of  action  either  in  contract  or  in  tort 
is  established,  some  of  the  elements  of  damage  complained 
of  may  be  barred  on  the  ground  that  they  are  avoidable 
consequences. 

17.  Remoteness  of  Avoidable  Consequences. — ^Prob- 
ably the  chief  reason,  on  principle,  for  not  allowing  the 
assessment  of  damages  for  avoidable  consequences,  is 
that  they  are  too  remote,  as  the  neglect  of  the  plaintiff 
to  exercise  ordinary  prudence  in  endeavoring  to  avoid 
harmful  consequences  of  defendant's  wrongful  act,  is  an 
independent  cause  intervening  between  the  infliction  of 
the  wrong  and  the  occurrence  of  the  final  result.  "In 
assessing  damages,  the  direct  and  immediate  conse- 
quences of  the  injurious  act  are  to  be  regarded,  and  not 
remote,  speculative  and  contingent  consequences,  which 
the  party  injured  might  easily  have  avoided  by  his  own 

Macon  v.  Dannenberg,   (1901)  113  7— Texas  &  P.  By.  Co.  v.  White, 

Ga.  1111,  39  S.  E.  446.  (1900)   101  Fed.  928,  42  0.  0.  A. 

6— Toledo,  P.   &  W.  Ry.  Co.  v.  86,  62  L.  B.  A  90. 
Pindar,   (1870)    53  111.  447,  5  Am. 
Rep.  57. 


64  LAW  OF  DAMAGES 

act.  Suppose  a  man  should  enter  his  neighbor's  field  un- 
lawfully, and  leave  the  gate  open;  if,  before  the  owner 
knows  it,  cattle  enter  and  destroy  the  crop,  the  treasurer 
is  responsible.  But  if  the  owner  sees  the  gate  open  and 
passes  it  frequently  and  wilfully  and  obstinately  or 
through  gross  negligence  leaves  it  open  all  summer,  and 
cattle  get  in,  it  is  his  own  folly.  So  if  one  throw  a  stone 
and  break  a  window,  the  cost  of  repairing  the  window  is 
the  ordinary  measure  of  damage.  But  if  the  owner  suf- 
fers the  window  to  remain  without  repairing  a  great 
length  of  time  after  notice  of  the  fact,  and  his  furniture, 
or  pictures,  or  other  valuable  articles,  sustain  damage, 
or  the  rain  beats  in  and  rots  the  window,  this  damage 
would  be  too  remote.  *  *  ® 

18.  Duty  of  Plaintiff  Only  to  Act  as  a  Reasonable  Man. 
— It  is  not,  however,  required  that  the  plaintiff  do  any 
more  than  a  reasonable  man  would  do  to  avoid  injurious 
consequences  of  the  defendant's  wrong.  It  is  not  incum- 
bent upon  the  plaintiff  to  incur  the  greatest  expense  or  to 
put  forth  the  greatest  possible  efforts  to  prevent  or  lessen 
damage.  If  he  has  acted  in  good  faith,  shown  due  dili- 
gence, and  used  reasonable  means  to  avoid  the  injurious 
consequences,  that  is  sufficient.^  A  plaintiff  in  a  personal 
injury  case  is  not  obliged  to  show  that  he  has  exercised 
any  more  than  ordinarj^  care  and  prudence  in  securing 
the  service  of  a  physician.^** 

8 — Loker    v.    Damon,    (1835)    17  ville,   N.   A.,    etc.,  R.   Co.   v.    Fal- 

Piek.   (Mass.)   284.  vey,   (1885)   104  Ind.  409,  3  N.  E. 

9 — Loeser   v.   Humphrey,    (1884)  389;    Illinois     Central    R.     Co.     v. 

41  O.  St.  378,  52  Am.  Rep.   86.  Gheen,  (1902)  112  Ky.  695,  68  S.  W. 

10 — Texas  &  P.  Ry.  Co.  v.  White,  1087;  McGarrahan  v.  New     York, 

(1900)    101  Fed.  928,  42  C.   C.  A.  N.    H.    &    H.    R.    Co.,    (1898)    171 

86,  62  L.  R.  A.  90;   Chicago  City  Mass.  211,  50  N.  E.  610;  FuUerton 

R.    Co.    V.    Saxby,    (1904)    213    HI.  v.    Fordyce,    (1897)    144    Mo.    519, 

274,  72  N.  E.  755,  68  L.  R.  A.  164,  44  S.  W.  1053;  Berry  v.  Greenville, 

104  Am.  St.  Rep.  218;  Pullman  Pal-  (1909)    84   S.    Car.    122,    65    S.    E. 

ace  Car  Co.  v.  Bluhm,   (1884)   109  1030,  19  Ann.  Cas.  978;  St.  Louis 

HI.   20,  50  Am.   Rep.   601;   Louis-  Southwestern  Ry.  Co.  v.  Johnson, 


AVOIDABLE  CONSEQUENCES  65 

In  a  personal  injury  case,  the  mere  doing  of  an  act 
which,  as  a  matter  of  fact,  prevents  or  retards  recovery, 
is  not  of  itself  a  ground  for  reduction  of  damages.  In 
order  so  to  reduce  damages,  the  plaintiff  must  have  vio- 
lated some  duty,  that  is,  he  must  have  committed  some 
negligent  act  or  omitted  some  duty.^* 

The  plaintiff  is  not  required  to  know  what  cannot  be 
within  his  knowledge  or  to  do  the  impossible.  Where  a 
railroad  company  has  negligently  killed  his  livestock,  and 
he  does  not  learn  of  the  fact  until  the  carcasses  are  value- 
less, he  is  not  bound  to  avoid  consequences  by  disposing 
of  the  bodies.^^ 

It  would  be  error  to  instruct  a  jury  that  plaintiff,  in 
order  to  recover,  must  show  **that  he  took  proper  and 
immediate  steps  to  have  his  condition  improved,"  as 
reasonable  care  is  all  that  is  required.^* 

The  mere  fact  that  plaintiff  might  have  avoided  damsige 
by  an  expenditure  amounting  to  somewhat  less  than  the 
loss,  does  not  diminish  his  measure  of  damages.**  A 
fortiori,  one  is  under  no  obligation  to  spend  more  than 
the  amount  of  damage  done  in  order  to  avoid  the 
damage.  ^^ 

The  law  does  not  require  plaintiff  to  do  something  un- 
lawful in  order  to  avoid  damage.*^ 

19.  Plaintiff  Under  No  Duty  to  Anticipate  and  Pre- 
vent Wrongful  Act  of  Defendant — The  plaintiff  is  under 
no  legal  duty  to  expect  that  the  defendant  will  commit 
a  wrongful  act  and  to  take  measures  to  prevent  it.    The 

(Tex.    Civ,   App.   1906)    94   S.   W.  13— Fullerton  v.  Fordyce,  (1897) 

162;    Selleck  v.  Janesville,    (1899)  144  Mo.  519,  44  S.  W.  1053. 

104  Wis.  570,  80  N.  W.  944,  47  L.  14— Reynolds  v.  Chandler  River 

R.  A.  691,  76  Am.  St.  Rep.  S92.  Co.,    (1857)    43  Me.   513. 

11 — Salladay       v.       Dodgeville,  15 — ^Easterbrook  v.  Erie  Ry.  Co., 

(1893)  55  Wis.  318,  55  N.  W.  696,  (1865)    51   Barb.    (N.   Y.)    94. 

20  L.  R.  A.  541.          .  16— Chicago,  R.  I.  &  P.  R.  Co.  v. 

13— Rockford,    etc.,    R.     Co.    v.  Carey,  (1878)  90  111.  514. 
Lynch,    (1873)   67  111.  149. 
Bauer  Dam. — 5 


66  LAW  OF  DAMAGES 

mere  statement  of  this  rule  puts  before  us  a  principle  so 
self-evident  as  to  seem  almost  axiomatic.  Yet,  in  almost 
half  the  states,  such  a  principle  is  given  no  recognition  in 
one  class  of  cases, — those  in  which  the  plaintiff,  a  passen- 
ger on  a  railway  train,  has  been  negligently  and  wrong- 
fully given  an  incorrect  ticket  by  one  agent  of  the  com- 
pany, and  is  wrongfully  required  later  by  another  agent 
of  the  same  company  to  leave  the  train,  in  consequence  of 
the  first  agent's  mistake.  A  large  minority  of  the  courts 
illogically  hold  that,  under  such  circumstances,  the  plain- 
tiff must  pay  again  in  order  to  prevent  being  ordered  off 
of  the  train  or  forcibly  ejected.^'^  A  majority  of  the  states 
hold  that  the  plaintiff  has  **the  option  either  to  pay  or 
leave  the  train  and  resort  to  his  legal  remedy. ' '  ^^  being 
under  no  legal  duty  to  pay  his  fare  a  second  time  in  order 
to  avoid  the  injury,  of  being  wrongfully  ordered  to  leave 
the  train. 

20.  Contracts  of  Emplojrment. — Where  an  employer 
breaks  his  contract  with  his  employee  by  discharging  him 
before  the  expiration  of  his  contractual  term  of  service, 
**the  party  employed  cannot  persist  in  working,  though 
he  is  entitled  to  the  damages  consequent  upon  his  dis- 
appointment." '^  By  continuing  to  work  under  such  cir- 
cumstances, the  employee  would  merely  cause  useless 
damage  to  himself,  and,  in  some  cases,  to  his  employer. 
Such  damage  cannot  properly  be  charged  to  the  latter. 
Furthermore,  a  wrongfully  discharged  employee  must 
make  reasonable  effort  to  obtain  other  similar  employ- 
ment in  the  same  vicinity,  in  order  to  avoid  the  loss 

17— Norton  v.   Consolidated  Ry.  etc.,  Co.  v.  Baker,  (1906)   125  Ga. 

Co.,    (1906)    79  Conn.   109,  63  Atl.  562,  54  S.  E.  639,  7  L.  R.  A.   (N. 

1087,  118  Am.  St.  Rep.  132.  S.)   103,  114  Am.  St.  Rep.  246. 

18 — Yorton    v.    Milwaukee,    etc.,  19 — Clark  v.  Marsiglia,  (1845)   1 

R.  Co.,  (1884)  62  Wis.  367,  21  N.  W.  Denio  (N.  Y.)  317,  43  Am.  Dec.  670. 
516,   23   N.   W.   401;    Georgia   Ry., 


AVOIDABLE  CONSEQUENCES  67 

accompanying  non-employment.^^    He  is  not  justified  in 
lying  idle  after  the  breach.^* 

But,  where  the  contract  is  not  for  personal  services  and 
is  not  such  as  to  exclude  the  contemporaneous  perform- 
ance of  other  contracts  by  the  same  contractor,  there  is 
no  legal  obligation  on  the  part  of  the  contractor  to  en- 
deavor to  avoid  idleness  by  searching  for  other  con- 
tracts.22 

21.  Contracts  of  Sale. — Where  the  vendee  under  a  con- 
tract of  sale  of  goods  refuses  to  take  the  property,  the 
vendor  is  under  a  duty  to  re-sell  in  order  to  avoid  as 
much  as  possible  of  the  loss  attendant  upon  keeping  the 
property.^^  But  where  vendor  specially  makes  an  article 
for  the  vendee,  there  is  no  such  duty  to  re-sell.^*  Also, 
where  the  article  is  being  specially  made  for  the  vendee, 
under  a  contract,  and  the  vendee  countermands  his  order, 
the  vendor  and  maker  is  under  a  duty  to  keep  his  damages 
small  by  discontinuing  work  on  the  article.^^ 

In  case  of  a  breach  by  the  vendor,  amounting  to  a 
failure  to  tender  the  goods  contracted  for,  the  vendee  is 
under  a  duty  to  avoid  useless  damage  to  himself,  by 
purchasing  elsewhere.^^  It  has  even  been  held  that,  in 
such  a  case,  the  vendee  must  purchase  again  of  the 
vendor,  breaker  of  the  contract,  if  that  is  his  only  means 
of  getting  the  goods.^^  Where,  however,  the  purchaser 
has  already  paid  the  wrong-doing  seller  for  the  goods, 

20 — Gillis  V.   Space,     (1872)     63  24 — Shawhan      v.     Van      Nest, 

Barb.  (N.  Y.)  177;  Howaxdv.  Daly,  (1874)  25  O.  St.  490,  18  Am.  Eep. 

(1875)    61  N.  Y.  362.  313. 

21— Sutherland  v.  Wyer,   (1877)  25— Hosmer    v.    Wilson,    (1859) 

67  Me.  64.  7  Mich.  294,  74  Am.  Dec.  716. 

22— Sullivan  v.  McMillan,  (1896)  26 — Miller  v.  Trustees  of  Mari- 

37  Fla.  134,  19  So.  340,  53  Am.  St.  iiers'  Church,   (1830)  7  Me.  51,  20 

Eep.  239;  where  the  contract  was  Am.  Dee.  341. 

to    cut    and    deliver    certain    logs  27 — Lawrence   v.   Porter,    (1894) 

growing  on  certain  land.  63  Fed.  62,  11  C.  C.  A.  27,  26  L. 

23— Kadish  v.  Young,  (1883)  108  E.  A.  167;  Deere  v.  Lewis,  (1869) 

ni.  170,  43  Am.  Kep.  548.  51  Dl.  254. 


68  LAW  OF  DAiVIAGES 

and  therefore  no  longer  has  any  money  with  which  to  buy, 
he  is  not  required  to  do  the  impossible  thing  by  buying 
again.^^ 

CASE  ILLUSTRATIONS 

1.  Defendant  wrongfully  dug  a  ditch  on  plaintiff's  mining 
claim.  The  ditch  overflowed  and  gradually  washed  away  nearly 
two  acres  of  plaintiff's  land.  Held,  that  it  is  proper  for  defend- 
ant to  show  that  plaintiff,  by  the  expenditure  of  $100  for  riprap- 
ping  the  bank  of  the  new  channel,  could  have  avoided  entirely, 
or  materially  diminished,  the  damages  to  the  mining  claim,^^ 

2.  Defendant  hires  plaintiff's  horse  and  overfeeds  and  improp- 
erly waters  him,  as  a  result  of  which  the  horse  becomes  ill  and 
dies.  Defendant  produces  "evidence  tending  to  show  that  the 
medicines  administered  by  the  veterinary  who  was  called  in  to 
take  care  of  the  horse  upon  his  return  to  the  stable,  were  inju- 
rious, and  contributed  to  his  death."  Plaintiff  can  recover. 
Only  reasonable  care  and  ordinary  diligence  in  seeking  for  and 
applying  proper  remedies  is  required  of  the  plaintiff.^*^ 

3.  Gas-pipes  were  so  negligently  laid  by  defendants,  that  gas 
escaped  from  them  into  a  well  at  plaintiff's  livery  stable.  After 
learning  that  the  well  was  corrupted  by  the  gas,  plaintiff  per- 
mitted his  horses  to  drink  the  water  of  the  well.  He  cannot  re- 
cover for  the  injury  to  the  horses  resulting  from  his  own  care- 
lessness in  allowing  the  horses  to  drink  the  water.  "He  can  re- 
cover only  for  the  natural  and  direct  consequences  of  the  wrong- 
ful act  of  the  defendants,  and  not  for  consequential  damages 
which  might  have  been  avoided  by  ordinary  care  on  his  part."^^ 

4.  Plaintiff,  a  married  woman,  sustained  a  personal  injury 
through  the  negligence  of  defendant.  The  injury  was  later  ag- 
gravated by  her  becoming  pregnant.  '  *  The  mere  fact  that  eight 
weeks  after  the  injury  pregnancy  occurred,  and  when  no  caution 
in  that  respect  appears  to  have  been  given  by  the  medical  ad- 

28— Illinois    Central    R.    Co.    v.  3  Allen  (Mass.)  594,  81  Am.  Dec. 

Cobb,  etc.,  Co.,  (1872)   64  HI.  128.  677. 

29 — Sweeney    v.    Montana    Cen-  31 — Sherman  v.  Fall  River  Iron 

tral  Ry.  Co.,  (1897)  19  Mont.  163,  Works  Co.,  (1861)  2  Allen  (Mass.) 

47  Pac.  791.  524,  79  Am.  Dec.  799. 

30— Eastman  v.  Sanborn,  (1862) 


AVOIDABLE  CONSEQUENCES  69 

viser,  is  not  necessarily  and  as  a  matter  of  law  sufficient  ground 
to  justify  a  reduction  of  damages  for  the  injury  caused  by  the 
defendant's  negligence,  although  the  results  of  the  injury  may 
have  been  thereby  prolonged,  or  her  recovery  delayed. ' '  ^^ 

5.  Plaintiff's  wife  was  injured  by  a  fall  caused  by  defendant's 
negligence  in  permitting  a  sidewalk  to  become  out  of  repair. 
Despite  medical  treatment,  her  foot  was  permanently  incapaci- 
tated. '  *  There  was  no  error  in  charging  the  jury  that  plaintiff, 
having  used  reasonable  care  in  the  employment  of  physicians  of 
good  reputation,  was  not  responsible  for  their  failure  to  exercise 
the  highest  skill  and  adopt  the  best  means  to  effect  a  cure. ' '  ^^ 

6.  A  sold  to  B  hay,  on  which  A  knew  white  lead  had  been  spilt. 
B  's  cow,  after  eating  of  the  hay,  became  ill  of  lead  poisoning,  and 
died  in  about  a  week.  Held,  that  the  following  instruction  was 
as  favorable  as  the  defendant  could  require:  "If  the  plaintiff, 
while  the  cow  was  sick  and  several  days  before  she  died,  knew 
that  the  cow  was  suffering  and  in  danger  of  death  from  lead 
poison,  she  was  bound  to  employ  the  best  remedies  within  her 
reasonable  reach,  at  reasonable  trouble  and  expense;  and  if  the 
jury  were  satisfied  that  such  remedies  would  have  been  effectual, 
and  the  plaintiff  did  not  seek  for  their  use  nor  inform  the  de- 
fendant seasonably  of  the  facts,  she  could  not  recover." ^4 

7.  A  telegraph  company  contracted  to  transmit  a  message 
from  plaintiff  to  a  sheriff,  notifying  him  not  to  make  a  sale  of 
certain  land.  The  telegraph  company  failed  to  deliver  the  mes- 
sage, and  the  sheriff  sold  the  land.  As  plaintiff  was  not  finan- 
cially able  to  employ  a  lawyer,  he  did  not  move  to  have  the  sale 
set  aside.  In  a  suit  against  the  company,  held  that  plaintiff,  be- 
ing financially  unable  to  employ  a  lawyer,  was  not  obliged  to  take 
the  legal  steps  necessary  to  avoid  the  sale,  which  was  the  conse- 
quence of  the  defendant's  wrong.  The  plaintiff  was  not  required 
to  do  the  impossible.^'^ 

8.  Plaintiff  contracted  to  play  in  defendants'  museum  for  36 

32— Salladay       v.       Dodgeville,  34— French  v.  Vining,  (1869)  102 

(1893)   85  Wis.  318,  55  N.  W.  696,  Mass.  132,  3  Am.  Rep.  440. 

20  L.  R.  A.  541.  35— Western     Union     Telegraph 

33 — Selleck  v.  City  of  Janesville,  Co.    v.    Wofford,    (Tex.    Civ.    App. 

(1899)  104  Wis.  570,  80  N.  W.  944,  1897)  42  S.  W.  119. 
47  L.  E.  A.  691,  76  Am.  St.  Bep. 
892. 


70  LAW  OF  DAMAGES 

weeks,  at  $35  per  week.  Defendants  wrongfully  discharged  him 
at  the  end  of  18  weeks.  "The  plaintiff  could  not  be  justified  in 
Ijing  idle  after  the  breach;  but  he  was  bound  to  use  ordinary 
diligence  in  securing  employment  elsewhere,  during  the  re- 
mainder of  the  term;  and  whatever  sum  he  actually  earned  or 
might  have  earned  by  the  use  of  reasonable  diligence,  should  be 
deducted  from  the  amount  of  the  unpaid  stipulated  wages. ' '  ^^ 

9.  A  contracts  to  take  advertising  space  in  B's  paper,  but  re- 
pudiates the  contract  before  it  has  been  fully  performed.  B  is 
under  a  duty  to  make  reasonable  efforts  to  sell  the  space  to  other 
parties;  and  his  damages  for  the  breach  are  the  contract  price 
less  the  amount  he  would,  by  reasonable  efforts,  have  obtained 
for  the  space.^'' 

10.  A  contracted  to  furnish  B  a  certain  quantity  of  hammered 
stone,  to  be  delivered  on  a  certain  day,  but  made  delivery  five 
months  late.  For  A's  breach,  B  is  entitled  to  recover  for  only 
such  results  as  he  could  not  avoid  by  reasonable  exertions.^* 

11.  A  employs  B  to  effect  fire  insurance  on  his  property.  B 
fails  to  effect  the  insurance.  A  gets  notice  of  such  failure,  but 
neglects  to  insure  the  property  himself.  Held,  that  he  cannot 
recx>ver  of  B  for  a  loss  subsequently  occurring  by  reason  of  the 
lack  of  insurance.  "It  has  been  repeatedly  held  that  a  party 
being  damaged  can  not  stand  by  and  suffer  the  injury  to  con- 
tinue and  increase,  without  reasonable  effort  to  prevent  further 
loss. ''39 

12.  Plaintiff's  intestate  delivered  to  defendant  carrier  a  sum 
of  money  to  be  transmitted  to  an  insurance  company  to  pay  the 
semi-annual  premium  on  his  life  insurance.  Defendant  failed 
to  transmit  the  money,  as  a  result  of  which  the  intestate's  policy 
lapsed.  The  intestate  lived  for  15  months  thereafter,  but  made 
no  effort  to  be  re-instated  or  re-insured,  so  far  as  the  evidence 
shows.  "We  think,  however,  it  was  incumbent  on  him  to  use 
the  care  and  adopt  all  reasonable  means  in  the  premises  known 
to  him.    And  unless  he  can  show  some  legal  excuse  for  not  doing 

36 — Sutherland  v.  Wyer,   (1877)  38 — Miller  v.  Trustees  of  Mari- 

67  Me.  64.  ners'  Church,  (1830)   7  Me.  51,  20 

37 — Tradesman    Co.    v.    Superior  Am.  Dec.  341. 

Mfg.    Co.,    (1907)    147    Mich.    705,  39— Brant  v.  Gallup,  (1885)  111 

111  N.  W.  343,  112  N.  W.  708.  HI,  487,  53  Am.  Bep.  638. 


AVOIDABLE  CONSEQUENCES  71 

so,  such  as  want  of  knowledge,  failure  of  health,  failing  circum- 
stances of  the  company,  etc.,  he  should  not  recover  damages  for 
such  loss  as  he  might  have  prevented* ' '  ^® 

40 — Grindle  v.  Eastern  Express 
Co.,  (1877)  67  Me.  317,  24  Am. 
Bep.  31. 


CHAPTER  VI 

Cebtainty  of  Proof 

22.  In  General. — Whether  in  tort  or  in  contract,  the 
plaintiff  must  prove  his  case  by  evidence  legally  admissi- 
ble. He  must  prove  it  to  such  a  degree  of  certainty  that 
it  can  be  said  that  a  verdict  in  his  favor  is  supported  by 
the  evidence.  This  is  as  true  in  regard  to  the  proof  of 
damages  as  in  regard  to  any  other  matter  in  a  case. 
Damages  cannot  legally  be  assessed  for  loss  of  which  the 
extent  is  not  proved,  or  for  damage  not  proved  to  be  a 
proximate  result  of  defendant 's  wrong.  Damages  *  *  must 
be  certain,  both  in  their  nature  and  in  respect  to  the  cause 
from  which  they  proceed. "  ^  Recovery  cannot  be  had  for 
damage  of  which  either  the  nature  or  the  cause  is  hypo- 
thetical, conjectural,  or  speculative.-  A  jury  has  no  right 
to  base  its  verdict  for  damages  upon  mere  guessing  and 
speculation.  Reasonable  exactness  of  proof  is  required 
to  fix  legal  liability,  so  that  results  of  which  the  causal 
relation  to  the  wrong  is  uncertain,  cannot  be  made  a 
basis  of  liability.^  In  contract,  there  is  the  added  fact 
that  the  parties  cannot  properly  be  said  to  have  contem- 
plated results  so  vague  in  their  connection  with  the  wrong 
as  to  appear  uncertain  and  speculative  even  after  they 
have  occurred.* 

1— Griffin   v.    Colver,    (1858)    16  N.  Y.  73,  52  N.  E.  679,  44  L.  E. 

N.  Y.  489,  69  Am.  Dec.  718;  Suth-  A.  216. 

erland  on   Damages,  §53.  3 — Griffin    v.    Colver,    (1858)    16 

a— Richmond    &    D.    E.    Co.    v.  N.  Y.  489,  69  Am.  Dec.  718;  Wilson 

AllisoTi,    (1890)    86  Ga.   145,  12  S.  v.    Wernwag,    (1907)    217    Pa.    82, 

E.  352,  11  L.  E.  A.  43;  Masterton  66   Atl.   242,  10   Ann.   Caa.  649;   8 

V.    Mt.    Vernon,    (1874)    58    N.   Y.  R.  C.  L.  438  et  seq. 

391;  Laidlaw  v.  Sage,   (1899)    158  4— Squire  v.  Western  Union  Tel. 

72 


CERTAINTY  73 

23.  Absolute  Certainty  Not  Required. — It  is  not  re- 
quired, however,  that  the  plaintiff  in  a  civil  case  prove 
his  case  beyond  a  reasonable  doubt.  He  is  not  required 
to  prove  damage  and  the  relation  thereof  to  the  defend- 
ant's wrong  to  any  higher  degree  than  that  degree  to 
which  he  must  prove  any  other  part  of  his  case.  To 
hold  otherwise  would  be  to  put  requirements  of  proof 
as  to  damages  in  a  civil  case  on  an  equal  footing  with 
general  requirements  in  a  criminal  case.  Mere  impossi- 
bility of  computing  damages  with  the  utmost  accuracy 
does  not  prevent  the  recovery  of  substantial  damages; 
if  either  party  is  to  be  placed  at  a  disadvantage  by  rea- 
son of  such  an  impossibility,  it  should  be  the  defendant, 
whose  wrongful  conduct  has  rendered  the  inquiry  as  to 
damages  necessary.'  Exact  computation  of  the  loss  sus- 
tained by  the  plaintiff  is  perhaps  less  frequently  possible 
than  impossible,  so  that  too  rigid  a  requirement  of  cer- 
tainty of  proof  as  to  amount  of  damage  might  actually 
deprive  many  persons  of  a  remedy  rightfully  theirs. 
Likewise,  it  is  sometimes  impossible  to  prove  with  abso- 
lute certainty  the  causal  connection  between  defendant's 
wrongful  act  and  the  loss  complained  of;  but  here  again 
only  a  proof  by  a  preponderance  of  the  evidence  is  neces- 
sary, as  is  true  in  regard  to  any  point  in  a  civil  case. 
Only  reasonable  certainty  of  proof  should  ever  be  re- 
quired.^    It  often  happens  that,  at  the  time  of  the  trial, 

Co.,   (1867)   98  Mass.  232,  93  Am.  ing  v.  Jones,   (1893)    52  HI.  App. 

Dec.  157;  Clyde  Coal  Co.  v.  Pitts-  597. 

burgh,  etc.,  R.  Co.,  (1910)   226  Pa.  6 — "It  is  also  the  rule  that  the 

391,  75  Atl.  596,  26  L.  R.  A.    (N.  damages  'must  be  certain,  both  in 

S.)   1191;   Sutherland  on  Damages,  their  nature,  and  in  respect  to  the 

§58  et  seq.;  8  R.  C.  L.  440.  cause    from    which    they   proceed.' 

5 — ^Weleh    v.    Ware,    (1875)     32  This  rule,  however,  is  satisfied  by 

^lich.  77.  a  reasonable  certainty — ^'such   cer- 

"The  fact  that  the  injuries  are  taiuty  as  satisfies  the  mind  of  a 
of  such  a  nature  as  not  to  be  sus-  prudent  and  impartial  person.'  'In 
ceptible  of  exact  admeasurement  in  using  the  words  "uncertain,  spec- 
money  value  does  not  make  them  ulative,  and  contingent,"  for  the 
any  the  less  proximate." — ^Brown-  purpose  of  excluding  that  kind  of 


74 


LAW  OF  DAMAGES 


the  proof  is  rather  unsatisfactory^  and  uncertain  as  to 
the  final  result  of  the  wrong,  as  in  the  case  of  a  recent 
personal  injury;  but  the  mere  fact  that  a  degree  of  un- 
certainty exists  does  not  absolve  the  wrongdoer.  In  such 
caseSy  the  court  seeks  to  have  the  jury  ascertain  with 
reasonable  certainty  the  final  actual  results  by  means  of 
evidence  of  the  probable  extent  of  the  injury.*^ 

Where  a  latent  condition  of  plaintiff's  health  causes 
the  results  of  the  defendant's  wrong  to  be  greater,  the 
plaintiff  is  entitled  to  recover  for  the  entire  damage 
proximately  resulting  from  the  wrong,  without  proving 
how  much  he  would  have  suffered  from  such  latent  con- 
dition if  he  had  not  received  the  injury.^    This  is  in  ac- 


damage,  it  is  not  meant  to  assert 
that  the  loss  sustained  must  be 
proved,  with  the  certainty  of  a 
mathematical  demonstration,  toi 
have  been  the  necessary  result  of 
the  breach  of  covenant  by  defend- 
ant. The  plaintiff  is  not  bound  to 
show,  to  a  certainty  that  excludes 
the  possibility  of  a  doubt,  that 
the  loss  to  him  resulted  from  the 
action  of  the  defendant  in  violat- 
ing his  agreement.  In  many  cases 
such  proof  cannot  be  given,  and 
yet  there  may  be  a  reasonable 
certainty,  founded  upon  certain  in- 
ferences legitimately  and  properly 
deducible  from  the  evidence,  that 
the  plaintiff's  loss  was  not  only, 
in  fact  occasioned  by  the  defend- 
ant 's  violation  of  his  covenant,  but 
that  such  loss  was  the  natural  and 
proximate  result  of  such  violation. 
Certainty  to  reasonable  intent  is 
necessary,  and  the  meaning  of  that 
language  is  that  the  loss  or  dam- 
age must  be  so  far  removed  from 
speculation  or  doubt  as  to  create 
in  the  minda  of  intelligent  and 
reasonable  men  the  belief  that  it 
was  most  likely  to  follow  from  the 


breach  of  the  contract,  and  was 
a  probable  and  direct  result  there- 
of."—Bates  V.  Holbrook,  (1904) 
85  N.  Y.  Supp.  673,  89  App.  Div. 
548,  quoting  8  Am.  &  Eng.  Enc. 
of  Law,  p.  548,  €10. 

"The  rule  against  the  recovery 
of  uncertain  damages  has  been  gen- 
erally directed  against  uncertainty 
as  to  cause  rather  than  uncertainty 
as  to  measure  or  extent;  that  is, 
if  it  is  uncertain  whether  the  de- 
fendant's act  caused  any  damage, 
or  whether  the  damage  proved 
flowed  from  the  defendant's  act, 
there  may  be  no  recovery  of  such 
uncertain  damages;  whereas  uncer- 
tainty which  affects  merely  the 
measure  or  extent  of  the  injury 
does  not  bar  a  recovery." — Crich- 
field  V.  Julia,  (1906)  147  Fed.  65, 
77  C.  C.  A.  297. 

7 — People's  Ice  Co.  v.  Steamer 
Excelsior,  (1880)  44  Mich.  229,  6 
N.  W.  636,  38  Am.  Eep.  246. 

8— Chicago  City  R.  Co.  v.  Saxby, 
(1904)  213  111.  274,  72  N.  E.  755, 
68  L.  R.  A.  164,  104  Am.  St.  Rep. 
218;  Sherman  v.  Indianapolis  T. 
&  T.  Co.,  (1911)  48  Ind.  App.  623, 


CERTAINTY  75 

cord  with  the  well  settled  principle  that  only  reasonable 
certainty  of  proof  is  required. 

The  requirement  of  certainty  varies  in  the  mode  of  its 
application,  according  to  the  circumstances  of  the  partic- 
ular case.  The  mode  of  operation  of  the  rule  requiring 
certain  proof  can  be  seen  only  by  examining  case  illus- 
trations. 

24.  Certainty  of  Proof  Not  to  Be  Confused  with  Prox- 
imity of  Cause. — The  requirement  of  certainty  of  proof 
must  not  be  confused  with  that  of  proximity  of  result  to 
cause,  but  there  are  numerous  instances  of  such  confu- 
sion. What  is  really  too  uncertain  is  often  called  *'too 
remote,"  probably  because  remote  damage  is  often  un- 
certain and  uncertain  damage  is  perhaps  usually  remote.® 

CASE  ILLUSTRATIONS 

1.  A  contracted  to  give  B  the  exclusive  right  to  sell  "Tom 
Moore"  cigars  in  a  certain  territory.  B,  by  his  work,  built  up 
a  large  demand  for  the  cigars.  A  broke  the  contract  by  refusing 
to  supply  B  with  more  cigars.  Held,  that  B  has  a  right  to  re- 
cover for  prospective  profits.  *  *  It  seems  never  to  have  been  held 
in  this  state  that,  where  there  is  no  other  measure  of  damages  for 
breach  of  contract,  a  contracting  party  is  to  be  denied  any  dam- 
age because  no  better  measure  than  the  reasonable  prospective 
profits  of  a  business  is  attainable.  We  think  that  it  would  be 
manifestly  unjust  to  deny  to  the  defendant  in  this  case  any  re- 
covery whatever  for  breach  of  his  contract  because  the  contract 
itself  contemplated  and  was  based  upon  prospective  profits."  ^^ 

2.  Plaintiffs  are  suing  for  the  purchase  price  of  an  engine  sold 
to  defendants  but  delayed  in  delivery.  Defendants  seek  recoup- 
ment in  the  way  of  damages  for  plaintiff's  delay.  "The  de- 
fendants were  not  entitled  to  measure  their  damages  by  estimat- 

96  N.  E.  473;   Hahn  v.  Delaware,  (1912)   85   Conn.  438,  83  Atl.  530, 

L.  &  W.  E.  Co.,   (N.  J.  1918)    105  stresses  the  difference  between  cer- 

Atl.  459.     See  8  N.  C.   C.  A.  969  tainty    and    probability, 

note.  10— Hichhorn  v.  Bradley,  (1902) 

9— Johnson    v.    Connecticut   Co.,  117  la.  130,  90  N.  W.  592. 


76  LAW  OF  DAIMAGES 

ing  what  they  might  have  earned  by  the  use  of  the  engine  and 
their  other  machinery  had  the  contract  been  complied  with. 
Nearly  every  element  entering  into  such  a  computation  would 
have  been  of  that  uncertain  character  which  has  uniformly  pre- 
vented a  recovery  for  speculative  profits.  But  it  by  no  means 
follows  that  no  allowance  could  be  made  to  the  defendants  for 
the  loss  of  the  use  of  their  machinery. "  ^  ^ 

3.  Defendant  telegraph  company  undertook  to  transmit  and 
deliver  a  message  for  plaintiff,  directing  his  broker  to  purchase  a 
certain  amount  of  petroleum  if  he  deemed  it  advisable.  Defend- 
ant delayed  the  message,  so  that  it  was  delivered  to  the  broker 
several  hours  late,  as  a  result  of  which  the  broker  could  not  pur- 
chase on  exchange  until  the  next  day.  Meanwhile,  the  price  had 
risen,  so  that  the  broker  did  not  think  it  best  to  purchase. 
Plaintiff  is  entitled  to  no  damages  other  than  the  cost  of  trans- 
mitting the  message.  "Here  the  plaintiff  did  not  purchase  the 
oil  ordered  after  the  date  when  the  message  should  have  been 
delivered,  and  therefore  was  not  required  to  pay,  and  did  not 
pay,  any  advance  upon  the  market  price  prevailing  at  the  date 
of  the  order;  neither  does  it  appear  that  it  was  the  purpose  or 
intention  of  the  sender  of  the  message  to  purchase  the  oil  in  the 
expectation  of  profits  to  be  derived  from  an  immediate  resale. 
If  the  order  had  been  promptly  delivered  on  the  day  it  was  sent, 
and  had  been  executed  on  that  day,  it  is  not  found  that  he  would 
have  resold  the  next  day  at  the  advance,  nor  that  he  could  have 
resold  at  a  profit  at  any  subsequent  day."  ^^ 

4.  Plaintiff,  a  passenger  on  defendant's  trolley  car,  was  in- 
jured by  an  explosion  caused  by  a  defective  controller  negli- 
gently used  by  defendant.  Recovery  is  sought  for  both  present 
and  prospective  injuries.  She  cannot  recover  for  merely  possi- 
ble prospective  injuries,  but  she  can  recover  for  prospective  in- 
juries likely  to  result.  **  'Certainty'  is  freedom  from  doubt,  and 
if  a  plaintiff  is  required  to  prove  that  future  apprehended  con- 
sequences are  reasonably  free  from  doubt,  he  has  imposed  upon 
him  a  burden  far  beyond  the  ordinary  requirement  of  proof  in 

11— Griffin  v.  Calver,  (1858)  16  Hall,  (1888)  124  U.  S.  444,  31  L. 
N.  Y.  489,  69  Am.  Dec.  718.  ed.   479,    8   Sup.    Ct.    577. 

12— Western    Union    Tel.    Co.   v. 


CERTAINTY  77 

a  civil  action  and  approximating  closely  to  the  proof  beyond  a 
reasonable  doubt  of  the  criminal  action." ^^ 

5.  A  negligently  left  gaps  in  his  fence,  and  B  negligently  failed 
to  fence  his  own  property.  Depredations  upon  B's  property  by 
cattle  resulted,  partly  from  the  negligence  of  each  party;  but 
the  testimony  failed  to  show  what  part  of  the  damage  was  due 
to  B's  negligence.    A  cannot  recover  of  B.^* 

6.  Because  of  the  failure  of  A  to  pay  a  certain  sum  of  money 
when  due,  B  loses  the  opportunity  to  make  investments  in  the 
market.  B  cannot  recover  for  this  loss.  "Whether  he  would 
have  made  or  lost  money  if  the  payment  had  been  made,  is  un- 
certain.i5 

7.  A  contracts  to  deposit  a  certain  sum  of  money  with  B,  to 
be  applied  on  furniture  which  A  is  to  purchase  when  he  gets 
married.  A  does  not  make  the  deposit  and  does  not  marry.  No 
damages  can  be  measured  here.  It  is  not  certain  how  much  B 
is  damaged  or  whether  he  is  damaged  at  all  by  A 's  failure  to  de- 
posit.^® 

8.  Defendant  so  negligently  operated  its  locomotive  that  dense 
smoke  and  vapors  fell  upon,  and  went  through,  plaintiff's  dwell- 
ing-house, causing  damage  to  the  house  and  its  contents.  The 
fact  that  it  is  impossible  to  say  just  how  much  of  the  damage 
was  caused  by  negligent  firing  and  how  much  was  the  necessary 
result  of  the  operation  of  a  railroad,  does  not  make  the  damages 
so  uncertain  as  not  to  be  recoverable.^^ 

9.  Plaintiff's  lands  were  flooded,  which  was  due  partly  to  the 
acts  of  defendant  and  partly  to  natural  causes.  Plaintiff  may 
recover.  ' '  It  seems  to  be  obvious  that  all  water  which  flows  on 
plaintiff's  land  must  necessarily  occasion  damage  to  him.  There 
is  no  reason  in  saying  that,  because  his  land  would  be  overflowed 
in  the  natural  condition  of  that  water,  that  no  harm  is  done  in 
augmenting  such  inundations.  The  larger  the  augmentation  of 
water,  it  would  seem,  the  greater  the  injury  would  be  by  reason 

13-^ohnson  v.  Connecticut  Co.,  16— Katz  v.  Wolf,  (1896)  37  N. 

(1912)  85  Conn.  438,  83  Atl.  530.  Y.  Supp.  648,  16  Misc.  82. 

14 — Hightower  v.  Henry,  (1905)  17 — Jenkins  v,  Pennsylvania  R. 

85  Miss.  476,  37  So.  745.  Co.,  (1902)   67  N.  J.  Law  331,  51 

15— Greene  v.  Goddard,  (1845)  9  Atl.    704,   57   L.   R.   A.   309. 
Mete,   (Mass.)   212; 


78  LAW  OP  DAMAGES 

of  such  increase.    It  is  a  question  for  the  good  sense  of  the 
jury."  18 

10.  Cattle,  of  which  part  belonged  to  defendant  and  part  to 
others,  trespassed  on  plaintiff's  land  and  destroyed  his  com. 
Plaintiff  may  recover  substantial  damages.  "In  eases  of  this 
sort,  entire  accuracy  is  impossible.  The  jury  had  a  right  to  con- 
sider from  the  evidence  how  much  com  had  been  destroyed,  and 
what  proportion  of  the  cattle  in  the  field  were  turned  in  by  the 
defendant,  and  thus  arrive  at  as  near  an  estimate  of  the  damages 
as  the  nature  of  the  case  would  permit."  ^^ 

11.  Defendant  cast  refuse  material  out  of  his  sawmill  into  a 
stream,  from  which  a  freshet  carried  it  to  the  plaintiff's  land. 
Plaintiff  may  recover.  "The  difficulty  may  be  great  of  accu- 
rately proportioning  and  assessing  the  damages  done  by  the  de- 
fendant, but  that  difficulty  the  defendant  would  have  avoided 
had  he  taken  care  that  no  occasion  should  arise  requiring  such 
assessment  of  damages,  "^o 

12.  Defendant  city's  pumping-station  was  so  operated  as 
greatly  to  lower  the  water  level  of  plaintiff's  land  and  diminish 
its  productive  capacity.  ' '  A  plaintiff  is  entitled  to  damages  for 
the  diminution  of  the  productive  value  of  the  property  occa- 
sioned by  the  trespass,  and  upon  evidence  showing  the  nature, 
character,  and  extent  of  the  business  of  cultivating  the  property 
interrupted  or  diminished  by  the  trespass  plaintiff  is  entitled  to 
have  an  assessment  of  damages,  even  if,  upon  the  evidence,  it  is 
very  difficult  to  reach  a  satisfactory  result.  "21 

13.  A  water  company  contracted  with  a  city  to  keep  fire  hy- 
drants constantly  supplied  with  water  under  sufficient  pressure 
for  effective  fiire  services.  This  it  failed  to  do.  The  damages  for 
this  breach  were  difficult  to  assess,  "but  mere  difficulty  in  assess- 
ing damages  is  no  reason  for  denying  them  to  a  party  who  has 
a  right  to  compensation  as  a  substitute  for  that  which  he  was  en- 
titled to  receive,  but  of  which  he  has  been  deprived  by  the  de- 
fault of  another.     *     *     *     The  damages  in  such  a  case  must 

18— Phillips    V.    Phillips,    (1870)  20— Washburn  v.  Gilman,  (1874) 

34  N.  J.  Law  208.     Accord:    Chi-  64  Me.   163,   18   Am.   Rep.  246. 

cago   &   N.  W.   Ry.   Co.   v.   Hoag,  21-Dinger  v.  City  of  New  York, 

"*                            -^                          ^'  (1903)     86    N.    Y.    Supp.    577,    42 

(1878)   90  ni.  339.  j^j^^^  3^9.  affirmed  in  memorandum 

19— Ogden    v.    Lucas,    (1868)    48  decision,   (1905)   182  N.  Y.  542,  75 

lU.  492.  N.   E.    1129. 


CERTAINTY  79 

be  assessed  in  such  reasonable  amounts  as,  in  the  judgment  of  the 
court  or  jury,  the  evidence  warrants. ' '  22 

14.  Defendant,  upon  the  purchase  of  certain  "beautifiers 
for  women"  by  plaintiffs,  agreed  to  print  plaintiff's  names  at 
the  bottom  of  all  defendant's  advertisements  in  the  Detroit  news- 
papers as  carrying  defendant's  preparations  for  sale.  Defend- 
ant, after  eight  months,  ceased  so  to  print  plaintiff's  names,  and 
inserted  instead  the  name  of  another  house  as  wholesale  agents 
in  Detroit.  Judgment  for  defendant,  "The  injury  suffered,  if 
any,  was  a  loss  of  such  profits  as  would  have  resulted  from  adver- 
tising— a  matter  of  mere  conjecture,  depending  upon  the  num- 
ber who  might  read  and  act  upon  the  advertisement. ' '  ^s 

15.  Plaintiff  was  injured  through  the  negligence  of  defendant 
village,  and  was  compelled  to  cease  his  work  of  buying  teas,  so 
that  there  was  a  great  falling  off  in  the  amount  of  business  done 
by  his  firm.  Held,  that  profits  lost  through  the  injury  cannot  be 
recovered.  * '  These  profits  depend  upon  too  many  contingencies, 
and  are  altogether  too  uncertain  to  furnish  any  safe  guide  in 
fixing  the  amount  of  damages.  "^4 

16.  A  contracted  to  procure  an  assignment  of  certain  stock  to 
B,  but  failed  to  do  so.  The  evidence  tended  to  show  that  the 
stock  was  worth  its  face  value  of  .$4,000.  There  is  no  such  un- 
certainty as  to  prevent  recovery  for  the  breach.^s 

17.  Plaintiff  agreed  to  perform  certain  services  for  defendant, 
in  consideration  of  which  defendant  promised  to  pay  plaintiff 
$5,000  and  six  per  cent  preferred  stock  in  a  certain  corporation 
to  be  organized,  to  the  par  value  of  $100,000.  Plaintiff  per- 
formed the  services,  and  the  corporation  was  organized,  but  it 
did  not  issue  any  preferred  stock,  for  which  reason  there  was 
no  market  value  of  such  stock  ascertainable.  Plaintiff's  damages 
resulting  from  the  breach  of  the  contract  to  transfer  him  the 
stock,  are  not  too  uneertain  to  be  recoverable.^^ 

Sa— -First     National      Bank      of  25— First  National  Bank  of  Wa- 

Minneapolis    v.    St.    Cloud,    (1898)  terloo  v.  Park,  (1902)  117  la.  552, 

73  Minn.  219,  75  N.  W.  1054.  91  N.  W.  826. 

23— Stevens  v.  Yale,  (1897)    113  26— Crichfield    v.    Julia,    (1906) 

Mich.  680,  72  N.  W.  5.  147  Fed.   65,  77  C.  C.  A.  297.    In 

24 — ^Masterton    v.    Mt.    Vernon,  such  a  case,  the  property  to  be  de- 

(1874)  58  N.  Y.  391.  See  also  Howe  livered    having   no    market    value, 

Mach.  Co.  V.  Bryson,  (1876)  44  la.  its  real  value  is  determined  by  con- 

159,  24  Am.  Eep.  735.  sidering  other  facts.     Among  these 


80  LAW  OF  DAMAGES 

18.  Plaintiffs  contracted  to  furnish  defendants  with  "what- 
ever quantities  of  silicate  of  soda  they  will  require  to  use  in 
their  factories  during  one  year  fi*om  date"  at  the  price  of  $1.10 
per  100  pounds.  Two  hundred  and  Mty  barrels  of  the  article 
were  delivered  under  the  agreement,  when  defendants  notified 
plaintiffs  that  they  would  not  receive  any  more.  During  the  bal- 
ance of  the  year  referred  to  in  the  contract,  the  defendants  used 
about  2,877  barrels  of  the  article,  which  they  purchased  of  other 
parties.  Silicate  of  soda  is  not  on  sale  in  the  market,  so  that 
there  is  no  market  value.  Plaintiffs  may  recover  profits  which 
they  would  have  made  under  the  contract.^'^ 

19.  Defendants,  contractors,  in  constructing  an  underground 
street  railroad  in  front  of  plaintiff's  hotel,  erected  a  structure 
which  was  a  nuisance,  preventing  plaintiff  from  receiving  a  nor- 
mal amount  of  rental  for  his  rooms,  and  diminishing  the  amount 
of  receipts  from  the  restaurant  business  in  connection  with  the 
hotel.  Held,  that,  under  the  circumstances  proved,  the  losses  of 
the  plaintiff  were  sufficiently  certain  to  be  recoverable.  The 
amount  of  the  business  done  before  the  beginning  of  the  nui- 
sance, the  amount  done  during  its  continuance,  and  the  amount 
done  after  its  cessation,  are  competent  to  show  what  damage  was 
done.     * '  What  the  law  requires  is  the  best  and  most  certain  proof 

that  it  is  possible  to  supply,  and  such  proof  we  have  in  this 
case.  "28 

20.  Defendant  contracted  to  transmit  and  deliver  a  telegram 
for  plaintiff,  to  a  third  party,  announcing  her  husband's  death, 
stating  that  she  would  arrive  at  6  A.  M.  with  the  corpse,  and 
requesting  him  to  tell  Thomas,  one  of  her  husband's  relatives. 
Defendant  negligently  changed  the  name  of  the  sender  from 
"Edith  Cowan"  to  "Edith  Erwin,"  so  that  the  receiver  knew 
nothing  of  the  meaning  of  the  message,  and  so  did  not  comply 
with  the  request.  Plaintiff  arrived  with  the  corpse  and  had  to 
wait  three  or  four  hours,  until  her  friends  had  been  notified. 
She  asks  damages  for  mental  suffering.  Held,  that  claims  of  this 
nature  will  not  be  disallowed  merely  "because  of  the  impossi- 

facts  is  the  market  value  of  the  N.   Y.    382,   42   N.   E.   982,   52   L. 

corporation's  property.    Hewitt  v.  R.  A.  225. 

Steele,  (1893)    118  Mo.  463,  24  S.  28— Bates  v.  Holbrook,  (1904)  85 

W.  440.  N.  Y.  Supp.  673,  89  App.  Div.  548. 
27— Todd  V.  Gamble,  (1896)   148 


CERTAINTY  81 

bility  of  providing  any  exact  standard  or  measure  of  compensa- 
tion for  injured  feelings.  "2» 

21.  Defendant  committed  an  assault  and  battery  on  plaintiff, 
a  theatrical  performer,  by  reason  of  which  plaintiff  lost  time  and 
professional  gains.  Some  difficulty  was  experienced  in  arriving 
at  a  fair  measure  of  damages  for  such  loss,  as  the  defendant 
performed  jointly  with  his  wife.  Inability  to  compute  damages 
with  accuracy,  is  no  reason  why  the  jury  should  not  get  such 
information  as  may  be  had.  A  wrong-doer  must  bear  the  risk 
of  failure  to  reach  an  exact  result,  "because  it  is  not  the  plain- 
tiff's fault  that  the  inquiry  has  become  necessary.  Where  no 
better  means  can  be  had,  the  jury  must  use  their  best  judgment, 
and  it  is  presumed  that  counsel  will  urge  before  them  all  consid- 
erations which  will  aid  them  in  avoiding  injustice.  "^^ 

22.  The  defendant,  by  false  representations,  induces  the  plain- 
tiff to  lease  a  certain  parcel  of  land,  close  to  the  entrance  to  cer- 
tain centennial  exposition  grounds,  for  a  restaurant.  The  evi- 
dence showed  that  it  was  very  uncertain  whether  plaintiff  would 
have  profited  or  lost  by  the  venture  if  defendant's  representa- 
tions had  been  true,  as  others  in  similar  ventures  at  this  exposi- 
tion had  lost  money.  Plaintiff's  damages  are  too  speculative  to 
be  recoverable.31 

29— Cowan     v.     Western    Union  30— Welch    v.   Ware,    (1875)    32 

Telegraph  Co.,  (1904)   122  la.  379,  Mich.  77. 

98    S.    W.    281,    64   L.    R.    A.   545,  31— Myers     v.     Turner,     (Tenn. 

101  Am.  St.  Bep.  268.  1898)   52  8.  W.  332. 


Bauer  Dam.— 6 


CHAPTER  VII 
Entire  and  Prospective  Damages  * 

25.  In  General. — One  of  the  most  important  and  un- 
failing principles  of  the  law  of  damages  is  that  one  in- 
jury gives  rise  to  only  one  right  of  action.  Past  and  fu- 
ture damage  growing  out  of  one  injury  must  be  compen- 
sated for  in  one  action.^  It  is  safe  to  say  that  no  care- 
fully reasoned  judicial  opinion  has  ever  violated  this 
principle.  At  first  glance,  some  cases  will  seem  to  the 
student  to  be  exceptions  to  the  general  rule;  but  such 
cases  are  only  apparently,  and  not  actually,  outside  the 
operation  of  the  rule,  as  we  shall  see.  Neither  in  con- 
tract nor  in  tort  can  more  than  one  action  be  brought  for 
one  injury.  The  useless  splitting  up  of  a  right  of  action 
is  not  tolerated  by  the  courts.  Occasionally,  the  rule 
works  a  seeming  injustice,  as  in  a  case  of  personal  in- 
jury, where,  after  the  plaintiff  gets  judgment  against  the 
wrongdoer,  there  accrue  proximate  consequences  more 
serious  than  any  that  were  known  or  anticipated  at  the 
time  of  the  trial ;  but  the  rule  is  a  necessary  one,  and  in 
the  main  just. 

In  contract,  damages  assessed  once  for  all,  in  compen- 
sation for  all  losses  past  and  future,  are  known  as  entire 
damages ;  and,  in  tort,  damages  for  future  loss  are  called 
prospective  damages. 

1 — For     a     more    comprehensive  5  N.  W.  495:    Hargreaves  v.  Kim- 
discussion  of  this  subject  as  affect-  berley,   (1885)   26  W.  Va.  787,  53 
ing    torts    to    realty,    see    Chapter  Am.  Rep.  121. 
XL.  Contract:   Gait  v.  Provan,  (1906) 

2— Tort:  Powers  v.  City  of  Coun-  131  la.  277,  108  N.  W.  760;  Fish 

cil   Bluffs,    (1877)    45   la.   652,   24  v.   FoUey,   (1843)   6  HiU   (N.  Y.) 

Am.  Rep.  792;  Stodghill  v.  Chicago,  54. 
B.  &  Q.  R.  Co.,  (1880)  53  la.  341, 

82 


ENTIRE  AND  PROSPECTIVE  DAMAGES  83 

26.  Continuing  Wrongs  and  Series  of  Wrongs.— The 
apparent,  but  not  real,  exceptions  to  the  general  rule  that 
a  plaintiff  cannot  have  more  than  one  action  for  one  in- 
jury, are  cases  of  continuing  wrongs  or  of  series  of 
wrongs.  The  too  loose  use  of  the  term  ''continuing 
wrong"  is  unfortunate,  as  a  more  accurate  expression 
would,  in  many  instances,  be  ** series  of  wrongs;'*  for  a 
continuing  wrong  is  sometimes  really  a  chain  of  wrongs, 
alike  in  their  nature  and  traceable  to  one  beginning. 
Where  an  injury  is  of  such  a  kind  as  to  be  complete  with- 
out proof  of  damage,  as  in  an  ordinary  case  of  trespass 
to  realty,  the  act  of  the  defendant,  being  wrongful,  gives 
rise  at  once  to  a  right  of  action  in  the  plaintiff,  and  all 
damage,  past  and  future,  is  compensated  for  in  the  one 
action.^  Greater  difficulty  arises  where  the  defendant 
has  done  an  act  not  wrongful  in  itself,  from  which  a 
number  of  events  in  a  series  occur  as  proximate  results, 
each  bringing  damage  to  the  plaintiff  and  each  consti- 
tuting a  cause  of  action.  Such  a  case  is  that  of  A's  with- 
drawal of  a  part  of  the  soil  of  his  own  land,  depriving 
B  's  land  of  its  natural  support.  The  withdrawal  of  the 
support  is  not  of  itself  wrongful  and  gives  B  no  right  of 
action.  Just  as  soon  as  B  's  land  is  actually  damaged  by 
the  excavation,  and  no  sooner,  B  has  a  right  of  action. 
At  the  first  subsidence  of  his  land,  he  can  maintain  his 
first  action.  Then,  if  B  's  land  again  subsides  from  time 
to  time,  as  a  result  of  the  excavation,  B  can  bring  new 
and  successive  actions  just  as  frequently  as  a  subsidence 
adds  to  his  damage.*    Each  subsidence  completes  a  new 

3 — ''The  adjudged  cases  are  tained  for  the  reeovery  of  the 
agreed  as  to  the  abstract  rule  that,  damages  as  they  accrue.  In  the  ap- 
where  the  injury  whoUy  accrues  plication  of  the  rule,  however,  the 
and  terminates  when  the  wrong-  authorities  are  somewhat  conflict- 
ful  act  causing  it  is  done,  there  ing. " — Bowers  v.  Mississippi,  etc., 
can  be  but  one  action  for  the  re-  Boom  Co.,  (1899)  78  Minn.  398,  81 
dresa  of  the  injury.  But,  where  N.  W.  208,  79  Am.  St.  Rep.  395. 
the  injury  is  in  the  nature  of  a  4 — "No  one  will  think  of  dis- 
continuing trespass  or  nuisance,  puting  the  proposition  that  for  one 
successive    actions    may    be    main-  cause   of  action  you  must  recover 


84 


LAW  OF  DAJMAGES 


cause  of  action.  The  series  of  losses  thus  resulting  to 
the  defendant  really  constitutes  a  series  of  wrongs ;  and 
it  cannot  be  properly  said  that  either  the  original  act  of 
the  defendant  or  the  resulting  series  of  losses  comprises 
a  continuing  wrong,  the  defendant's  act  not  being  of  it- 
self wrongful  at  all,  and  the  series  of  losses  constituting, 
not  a  continuing  wrong,  but  a  series  of  wrongs  and 
therefore  a  series  of  rights  of  action.  If  it  were  not 
true  that  each  one  of  such  losses  is,  in  legal  contempla- 
tion, an  injury  of  itself,  no  new  action  for  a  new  loss 
would  lie  after  the  maintenance  of  an  action  for  a  loss 
earlier  in  the  series. 

Where  the  defendant  has  committed  upon  the  plaintiff 
a  battery,  which  constitutes  but  one  wrong,  and  the  plain- 
tiff has  sued  and  recovered  damages,  and  a  piece  of  bone 
later  falls  out  of  the  plaintiff's  skull  as  a  result  of  the 


all  damages  incident  to  it  by  law 
once  and  forever.  A  house  that  has 
received  a  shock  may  not  at  once 
shew  all  the  damage  done  to  it, 
but  it  is  damaged  none  the  less 
then  to  the  extent  that  it  is  dam- 
aged; and  the  fact  that  the  dam- 
age only  manifests  itself  later  on, 
by  stages,  does  not  alter  the  fact 
that  the  damage  is  there.  And  so 
of  the  more  complex  mechanism 
of  the  human  frame;  the  damage  is 
dontte  in  a  railway  accident;  the 
whole  machinery  is  injured,  though 
it  may  escape  the  eye  or  even  the 
consciousness  of  the  sufferer  at  the 
time;  the  later  stages  of  suffering 
are  but  the  manifestations  of  the 
original  damage  done,  and  consc- 
qtient  upon  the  injury  originally 
sustained. 

"But  the  words  'cause  of  ac- 
tion' are  somewhat  ambiguously 
used  in  reasoning  upon  this  sub- 
ject. What  the  plaintiff  has  a  right 


to  complain  of  in  a  court  of  law 
in  this  ca«e  is  the  damage  to  his 
land,  and  by  the  damage  I  mean 
the  damage  which  had  in  fact  oc- 
curred; and,  if  this  is  all  that  a 
plaintiff  can  complain  of,  I  do  not 
see  why  he  may  not  recover  toties 
quoties  fresh  damage  is  inflicted. 

<<»  »  •  J  cannot  understand 
why  every  new  subsidence,  although 
proceeding  from  the  same  original 
act  or  omission  of  the  defendants, 
is  not  a  new  cause  of  action,  for 
which  damages  may  be  recovered. 
I  cannot  concur  in  the  view  that 
there  is  a  breach  of  duty  in  the  or- 
iginal excavation. ' ' — Lord  Hals- 
bury,  in  Darley  Main  Colliery  Co. 
v.  Mitchell,  (1886)  11  App.  Cas. 
127. 

See  New  Salem  v.  Eagle  Mill 
Co.,  (1884)  138  Mass.  8;  and  Mc- 
Connel  v.  Kibbe,  (1864)  33  El. 
175,  85  Am.  Dec.  265. 


ENTIRE  AND  PROSPECTIVE  DAMAGES  85 

battery,  the  plaintiff  cannot  maintain  a  second  action.' 
His  first  action  has  exhausted  his  right. 

27.  Toits  Having  More  Than  One  Aspect. — Sometimes 
a  tort  has,  to  the  plaintiff,  more  than  a  single  aspect,  af- 
fecting him  as  to  his  person  and  as  to  his  property,  or 
injuring  two  different  pieces  of  his  property;  but  this 
fact  does  not  give  him  two  separate  rights  of  action. 
Where  a  plaintiff  has,  as  a  result  of  the  same  wrong,  suf- 
fered damage  both  to  his  person  and  to  his  property,  it 
is  generally  held  that  he  has  only  one  cause  of  action. 
He  cannot  bring  one  suit  for  his  personal  injury  and 
later  maintain  a  suit  for  the  injury  to  his  property.® 
Where  the  defendant  has  converted  property  of  the 
plaintiff,  the  latter  cannot  first  maintain  one  action  for 
the  value  of  the  property  and  later  maintain  another 
action  for  special  damages,  based  upon  the  same  con- 
version.'^ So,  strictly  on  principle,  where  the  plaintiff 
has  sued  one  of  two  joint  converters  and  recovered 
against  him,  the  plaintiff  is  barred  from  maintaining  a 
subsequent  action  against  both  converters.*  Where  the 
defendant  has  negligently  burned  timber  growing  on  two 
lots  belonging  to  the  plaintiff,  by  one  act,  the  plaintiff 
has  only  one  cause  of  action.^  By  merely  calling  one  of- 
fense by  two  different  names,  a  plaintiff  cannot  maintain 
two  actions  for  the  one  wrong.    For  instance,  where  the 

5— Fetter  v.  Beale,  (1799)  1  Ld.  Am.  St.  Eep.  636;  Watson  v.  Texas 

Eaym.  339.  &    P.    By.    Co.,    (Tex.    Civ.    App. 

6— Doran   v.    Cohen,    (1888)    147  1894)    27   S.  W.   924. 

Mass.  342,  17  N.  E.  647;  King  v.  7— Sullivan  v.  Baxter,  (1889)  150 

Chicago,  M.  &  St.  P.  Ey.  Co.,  (1900)  Mass.  261,  22  N.  E.  895. 

80  Minn.  83,  82  N.  W.  1113,  50  L.  8— Bennett    v.    Hood,    (1861)    1 

E.  A.  161,  81  Am.  St.  Eep.  238.  Allen  (Mass.)  47,  79  Am.  Dec.  705, 

Contra:    Brundsen  v.  Humphrey,  9 — Knowlton  v.  New  York,  etc., 

(1884)    14  Q.  B.  D.   141,  53  L.  J.  E.   Co.,    (1888)    147  Mass.   606,   18 

Q.  B.  476,  51  L.  T.  529,  32  W.  E.  N.    E.    580;    Sullivan    v.    Baxter, 

944;  Eeilly  v.  Sicilian  Asphalt  Pav-  (1889)    150    Mass.   261,   22   N.   E. 

ing  Co.,   (1902)    170  N.  Y.  40,  62  895. 
N.    E.    772,    57   L.    E.    A.    176,    88 


86 


LAW  OF  DAMAGES 


defendant  has  enticed  and  carried  away  the  plaintiff's 
wife,  plaintiff  cannot  maintain  two  separate  actions,  one 
an  action  on  the  case  for  enticing  her  away,  and  the 
other  an  action  of  trespass  for  carrying  her  away.^*^  Like- 
wise, where  the  value  of  goods  has  been  recovered  in 
trover,  assumpsit  for  the  value  of  the  same  goods  will 
not  lie." 


28.  Entire  Damages. — In  contract,  entire  damages  can- 
not be  assessed  unless  there  has  been  an  entire  breach. 
If  a  contract  is  a  divisible  one,  so  that  the  contractor  is 
bound  to  do  a  series  of  acts  independent  of  one  another, 
upon  breach  as  to  one  of  the  acts,  the  other  party  may 
sue  and  recover  damages,  and  subsequently  a  new^  right 
of  action  accrues  upon  each  subsequent  and  separate 
breach. ^2    However,  **a  continuous  running  account  be- 


10— Gilchrist  v.  Bale,  (1839)  8 
Watts  (Pa.)  355,  34  Am.  Dec.  469. 

11 — Agnew  V.  McElroy,  (1848) 
10  Smedes  &  Mar.  (Miss.)  552,  48 
Am.  Dec.  772. 

12— Curry  v.  Kansas  &  C.  P.  Ey. 
Co.,  (1897)  58  Kan.  6,  48  Pa<5.  579. 
"It  is  undoubtedly  true  that  only 
one  action  can  be  maintained  for 
the  breach  of  an  entire  contract, 
unless,  by  the  terms  of  it,  it  is  in 
its  nature  divisible.  But  if  one 
contracts  to  do  several  things,  at 
several  times,  an  action  of  assump- 
sit lies  upon  every  default;  for, 
although  the  agreement  is  entire, 
the  performance  is  several,  and  the 
contract  is  divisible  in  its  nature. 
Thus,  on  a  note  or  other  contract 
payable  by  installments,  assumpsit 
lies  for  non-payment  after  the  first 
day;  or  where  interest  is  payable 
annually,  the  payment  of  the  prin- 
cipal being  postponed  to  a  future 
time,  assumpsit  lies  for  the  non- 
payment of  interest,  before  the 
principal  becomes  due  and  payable. 


In  all  such  cases,  although  the 
contract  is  in  one  sense  entire, 
the  several  stipulations  as  to  pay- 
ment and  performance  are  several, 
and  are  considered,  in  respect  to 
the  remedy,  as  several  contracts. 
This  principle  has  long  been  well 
settled,  although  the  law  in  this 
respect  has  been  very  much  mod- 
ified by  modern  decisions.     »     *     • 

"A  contract  to  do  several  things, 
at  several  times,  is  divisible  in 
its  nature;  and  that  an  action 
will  lie  for  the  breach  of  any 
one  of  the  stipulations,  each  of 
these  stipulations  being  considered 
as     a     several     contract.     *     ♦     » 

"As  the  law  is,  we  think  it  can 
not  be  maintained,  that  a  running 
account  for  goods  sold  and  de- 
livered, money  loaned,  or  money 
had  and  received,  at  different 
Irimee,  will  constitute  an  entire 
demand,  unless  there  is  some 
agreement  to  that  effect,  or  some 
usage  or  course  of  dealing,  from 
which   such   an   agreement   or   un- 


ENTIRE  AND  PROSPECTIVE  DAIVIAGES  87 

tween  the  same  parties,  is  an  entire  thing,  not  susceptible 
of  division,  the  aggregate  of  all  the  items  being  the 
amount  due.  If  this  is  not  so,  then  each  item  of  which 
the  account  is  composed  is  a  separate  debt  for  which  the 
party  may  sue."  ^^ 

CASE  ILLUSTRATIONS 

1.  Defendant,  operating  a  mill,  so  placed  a  large  exhaust  steam 
pipe  that  the  steam  was  ejected  with  force  into  plaintiff's  resi- 
dence, causing  an  excessive  amount  of  moisture  in  plaintiff's 
home,  so  that  the  house  became  mouldy  and  damp,  and  plaintiff 
contracted  asthma  and  rheumatism.  "It  is  urged  that  plain- 
tiff's instruction  on  the  measure  of  damages  was  erroneous,  in 
that  it  allowed  a  recovery  for  future  as  well  as  past  suffering. 
But  the  petition  included  that,  and  the  evidence  showed  she  had 
not  recovered,  and  the  jury  were  told  that  before  they  could  in- 
clude future  suffering,  they  must  find  that  she  had  not  recov- 
ered, which  would  make  future  suffering,  not  only  probable,  but 
certain."  1* 

2.  Defendant  railroad  company  committed  a  wrong  amount- 
ing to  a  permanent  injury  to  plaintiff's  mill,  by  diminishing  the 
water  power.  "In  the  instant  case  the  measure  of  damages  is 
the  difference  between  the  market  value  of  the  mill  property  be- 
fore and  after  the  injury.  As  the  assessment  is  to  be  made  now 
of  the  damages  to  flow  from  permission  to  take  the  water  in  the 
future,  the  evidence  should  be  confined  to  the  market  value,  at 
the  present  time,  of  the  plaintiff's  mill  property  with  an  undis- 
turbed flow  of  water,  and  with  the  flow  disturbed  as  proposed 
by  the  defendant. "  ^  ^ 

3.  A  railway  company  contracts  to  issue  passes  annually  to 

derstanding  may  be  inferred.     No  13 — Oliver  v.  Holt,  (1847)  1  Ala. 

such  agreement,  or  course  of  deal-  574,    46    Am.    Dec.    228;    Bender- 

ing,    is    set    up    in    this    case,    and  nagle  v.    Cocks,    (1838)    19   Wend, 

consequently,  the  defendant 's  plea,  (N.  Y.)    207,   32   Am.   Dec.   448. 

that    the    cause    of   action   in    this  14 — Strumph    v.    Loethen,    (Mo. 

suit  is  identical  with  that  orf  the  App.    1918)    203    S.    W.    238. 

former   action,    can  not   be    main-  15 — ^Norfolk    &    W.    Ey.    Co.    v. 

tained."— Badger       v.       Titcomb,  A.    C.    Allen    &    Soms,    (Va.    1918) 

(1834)    15    Pick.    (Mass.)    409,    26  95   S.   E.   406. 
Am.  Dec.  611. 


88  LAW  OF  DAJMAGES 

X,  for  life.    Held,  that  this  contract  is  divisible,  and  may  be  sued 
on  annually,  upon  each  breach.^  ^ 

4.  A  agreed  to  supply  B  with  20  bales  of  hops  per  month,  from 
October  to  February,  for  five  years.  Before  the  completion 
of  the  contract,  A  elected  not  to  perform.  Held,  that  B  can, 
upon  this  refusal  to  perform,  maintain  one  action  for  damages 
for  "what  he  would  have  suffered  by  the  continued  breach  of  the 
other  party  down  to  the  time  of  complete  performance,  less  any 
abatement  by  reason  of  circumstances  of  which  he  ought  reason- 
ably have  availed  himself. ' '  ^^ 

16— Curry  v.  Kansas  &  C.  P.  17— Eoehm  v.  Horst,  (1900)  178 
By.  Co.,  (1897)  58  Kan.  6,  48  V.  S.  1,  44  L.  ed.  953,  20  Sup. 
Pac.  579.  Ot.  780. 


CHAPTER  Vni 

Excessive  and  Inadequate  Damages 

29.  Verdict  May  Be  Set  Aside  for  Excessiveness  or  In- 
adequacy of  Damages. — Usually  a  court  is  slow  to  set 
aside  a  verdict  on  the  ground  that  the  damages  allowed 
are  excessive  or  that  they  are  inadequate.  Especially 
reluctant  is  a  court  to  set  aside  as  excessive  or  inadequate 
a  verdict  in  a  case  wherein  the  exact  or  approximate 
amount  of  damage  is  difficult  to  determine.^    A  court  is 


1 — In  Huckle  v.  Money,  (Com- 
mon Pleas,  1763)  2  Wilson  205,  95 
Eng.  Repr.  768,  Lord  Chief  Justice 
Pratt  said:  "In  all  motions  for 
new  trials,  it  is  as  absolutely  neces- 
sary for  the  court  to  enter  into  the 
nature  of  the  cause,  the  evidence, 
facts,  and  circumstances  of  the 
case,  as  for  a,  jury;  the  law  has 
not  laid  down  what  shall  be  the 
measure  of  damages  in  actions  of 
tort;  the  measure  is  vague  and  un- 
certain, depending  upon  a  vast  va- 
riety of  causes,  facts,  and  circum- 
stances; torts  or  injuries  which 
may  be  done  by  one  man  to  anoth- 
er are  infinite;  in  cases  of  criminal 
conversation,  battery,  imprison- 
ment, slander,  malicious  prosecu- 
tions, etc.,  the  state,  degree,  qual- 
ity, trade,  or  profession  of  the 
party  injured,  as  well  as  of  the 
person  who  did  the  injury,  must 
be,  and  generally  are,  considered 
by  a  jury  in  giving  damages;  the 
few  cases  to  be  found  in  the  books 
of  new  trials  for  torts  show  that 


coTirts  of  justice  have  most  com- 
monly set  their  faces  against  them; 
and  the  courts  interfering  in  these 
cases  would  be  laying  aside  juries; 
before  the  time  of  granting  new 
trials,  there  is  no  instance  that 
the  judges  ever  intermeddled  with 
the  damages." 

See  also  Terre  Haute,  etc.,  E.  Co. 
v.  Vanatta,  (1859)  21  111.  188, 
74  Am.  Dec.  96. 

"In  determining  whether  a  ver- 
dict is  excessive,  each  case  must 
be  governed  by  its  own  facts  and 
circumstances." — 8  R.  C.  L.  675. 

"In  determining  whether  or  not 
a  verdict  in  an  action  for  personal 
injuries,  or  other  personal  tort,  is 
excessive,  the  court  will  consider 
all  the  circumstances;  for  example, 
the  nature  and  extent  of  the  in- 
jury, whether  or  not  it  is  perma- 
nent, the  amount  of  suffering  which 
the  plaintiff  has  endured  in  conse- 
quence of  the  injury,  the  probabil- 
ity of  future  pain  and  suffering, 
the   expenses  which  he   has   been 


89 


90 


LAW  OF  DAMAGES 


less  ready  to  interfere  where  the  damages  are  nonpe- 
cuniary  than  where  they  are  pecuniary,  as  it  is  harder  to 
say  that  damages  for  a  non-pecuniary  injury  are  too 
much  or  too  little.  Yet  there  are  many  cases  in  which 
damages  were  non-pecuniary,  but  in  which  the  jury 
found  a  verdict  for  damages  so  clearly  excessive  or  inad- 
equate, that  the  court  set  the  verdict  aside.^  Where  the 
amount  of  damage  is  easily  stated  or  approximated,  a 
court  can,  with  more  reason,  say  that  the  amount  of  a 
verdict  is  excessive  or  inadequate.^  If  a  verdict  has 
been  rendered  for  an  amount  so  large  that  it  could  not 
possibly  have  been  arrived  at  by  a  proper  assessment  of 
damages  for  the  various  elements  of  injury  in  the  case, 


compelled  to  incur,  and  the  extent 
to  which  his  earning  power  has 
been  diminished  or  permanently 
Impaired.  Consideration  will  also 
be  given  to  such  matters  as  the 
age  of  the  plaintiff,  his  expectancy 
of  life,  and  the  amount  of  his  pre- 
vious earnings. ' ' — 8  K.  C.  L.  678. 

"If  there  is  a  legal  measure  of 
damages  which  the  jury  have  devi- 
ated from,  by  finding  either  less  or 
more  than  the  plaintiff  is  entitled 
to  by  a  preponderance  of  the  evi- 
dence, the  trial  court,  in  the  exer- 
cise of  discretion,  will  entertain  a 
motion  for  a  new  trial  on  behalf 
of  the  party  injured  by  the  find- 
ing. So  if  the  jury  assess  damages 
not  warranted  by  the  declaration, 
the  verdict  will  be  set  aside,  and 
the  court  may  da  it  ex  officio. 
Where  there  is  not  a  legal  measure 
of  damages,  and  where  they  are 
unliquidated,  and  the  amount 
thereof  is  referred  to  the  discretion 
of  the  jury,  the  court  will  not,  or- 
dinarily, interfere  with  the  verdict. 
It  is  the  peculiar  prorvince  of  the 
jury  to  decide  such  cases  under  ap- 
propriate    instructions     from     the 


court;  and  the  law  does  not  recog- 
nize in  the  latter  the  power  to 
substitute  its  own  judgment  for 
that  of  the  jury."  Sutherland  on 
Damages,  §  459, 

2 — Peterson  v.  Western  Union 
Tel.  Co.,  (1896)  65  Minn.  18,  67 
N.   W.    646,    33    L.    K.    A.    302. 

3— Phillips  V.  London  &  S.  W.  R, 
Co.,  (1879)  L.  E.  4  Q.  B.  D.  406; 
in  which  the  court  is  led  to  the 
conclusion,  not  only  that  the  dam- 
ages are  inadequate,  but  that  the 
jury  must  have  omitted  to  take 
into  consideration  some  of  the  ele- 
ments of  damage  which  ought  to 
have  been  taken  into  account.  A 
considerable  part  of  the  damage  in 
this  ease  waa  pecuniary  and  easily 
calculable,  so  that  the  court  could 
more  easily  set  aside  the  verdict 
than  if  the  damage  had  been 
wholly  or  almost  wholly  non-pecu- 
niary. The  amount  of  the  verdict, 
£7,000,  considered  by  itself,  was 
large;  so  that,  if  it  had  been  large- 
ly for  non-pecuniary  elements,  it 
would  not  have  been  very  likely  to 
be  set  aside  as  inadequate. 


EXCESSIVE  AND  INADEQUATE  DAMAGES         91 

the  verdict  is  set  aside.*  Likewise,  if  the  verdict  is  for 
the  plaintiff,  but  is  for  so  small  a  sum  as  to  make  it  clear 
that  the  jury  has  not  given  proper  consideration  to  all 
elements  of  damage  in  the  case,  the  court  sets  aside  the 
verdict.^  In  either  of  these  cases,  the  verdict  is  against 
the  law  and  the  evidence  and  is  regarded  as  indicating 
passion,  prejudice,  or  ignorance  on  the  part  of  the  jury. 
As  is  well  said  by  McClain,  J.,  in  Tathwell  v.  City  of 
Cedar  Eapids,^  ''The  right  of  jury  trial,  as  uniformly 
recognized  under  the  common  law  system,  involves  the 
determination  by  the  jury,  rather  than  by  the  judge,  of 
questions  of  fact,  including  the  amount  of  damages  to  be 
given  where  compensation  is  for  an  unliquidated  demand. 
Nevertheless,  the  trial  courts  have  exercised  from  early 
times  in  the  history  of  the  common  law  the  power  to 
supervise  the  action  of  the  jury,  even  as  to  the  measure 
of  damages,  and  to  award  a  new  trial  where  the  verdict 
is  not  supported  by  the  evidence  and  is  manifestly  un- 
just and  perverse.  And  while  it  is  uniformly  held  that 
the  trial  judge  will  interfere  with  the  verdict  of  the  jury 
as  to  matters  of  fact  with  reluctance,  and  only  where,  on 
the  very  face  of  the  evidence,  allowing  every  presump- 
tion in  favor  of  the  correctness  of  the  jury's  action,  it  is 
apparent  to  a  reasonable  mind  that  the  verdict  is  clearly 
contrary  to  the  evidence,  yet  the  power  of  the  judge  to 
interfere  in  extreme  cases  is  unquestionable.  It  has 
sometimes  been  said  that  the  judge  should  not  interfere 
where  the  verdict  is  supported  by  a  scintilla  of  evidence ; 
but  the  scintilla  doctrine  has  been  discarded  in  this  state, 
and  is  not  now  generally  recognized  elsewhere."    In 

4 — Peterson  v.  Western  Union  In  some  jurisdictions,  statutes 
Tel.  Co.,  supra;  Wood  v.  Gunston,  prohibit  the  granting  of  nnw  trials 
(King's  Bench,  1655)  Style's  Be-  on  account  of  inadequacy  of  dam- 
ports  466,  82  Eng.  Eepr.  867.  ages   in   actions   for  injury  to   the 

5 — Carter  v.  Wells,  Fargo  &  Co.,  person  or  reputation.     See  note,  8 

(1894)    64    Fed.    1005.      See    also  Ann.  Cas.  907. 

Phillips  V.  London  &  S.  W.  R.  Co.,  6— (1903)    122  la.  50,  97  N.  W. 

(1879)  L.  R.  4  Q.  B,  D.  406.  96. 


92  LAW  OF  DAIMAGES 

most  cases,  the  trial  judge  tries  to  prevent  the  rendering 
of  a  verdict  for  excessive  or  inadequate  damages,  by 
giving  proper  instructions  on  the  measure  of  damages. 

But  the  court  will  not  disturb  the  verdict  by  reason  of 
the  amount  thereof,  unless  it  is  so  grossly  excessive  or 
inadequate  as  to  indicate  passion  or  prejudice  or  igno- 
rance on  the  part  of  the  juryJ 

The  mere  fact  that  the  court  would  have  given  a  con- 
siderably larger  verdict  than  the  jury  has  given,  or  the 
fact  that  the  evidence  would  have  warranted  much  larger 
damages,  does  not  warrant  the  court  in  setting  aside  the 
verdict.* 

It  is  usually  exceedingly  difficult  to  induce  a  court  to 
declare  damages  in  a  negligence  case  to  be  so  inadequate 
as  to  justify  the  interference  of  the  court,  but  sometimes 
the  verdict  is  so  clearly  inadequate  as  to  evince  just  as 
much  prejudice  as  could  ever  be  shown  by  an  excessive 
verdict.^ 

For  an  unjustifiable  and  intentional  assault  and  bat- 
tery, the  plaintiff  is  not  restricted  to  nominal  damages; 
and  a  verdict  for  one  dollar  is,  in  such  a  case,  so  clearly 
inadequate  as  to  justify  setting  it  aside,  even  if  the 

7 — Florence  Hotel  Co.  v.  Bumpus,  however,  that,  according  to  the  pro- 

(1915)    194    Ala.    69,    69    So.    566,  cedure    in    most    jurisdictions,    the 

Ann.  Cas.  1918  E  252.  coruist  would  not  increase  the  dam- 

8 — ^Lancaster  v.  Providence  &  S.  ages,  but  would  merely  grant  a  new 

S.  8.  Co.,  (1886)   26  Fed.  233.  trial.     Likewise,  in  cases  wherein 

9 — ^"In  negligence  cases  the  the  jury  has  given  excessive  dam- 
court  is  averse  to  increasing  the  ages,  the  usual  procedure  is  to 
verdicts  of  juries,  who  rarely  un-  grant  a  new  trial;  but,  in  some 
derestimate  damages;  but  when  the  jurisdictions,  it  is  a  common  prac- 
jury  has  failed  to  do  justice,  the  tice  for  the  court  to  permit  a  ver- 
eourt,  in  the  exercise  of  its  juris-  diet  for  excessive  damages  to 
diction,  must  do  it. " — ^Ford  v.  Min-  stand,  on  the  condition  that  the 
neapolis  St.  Ry.  Co.,  (1906)  98  plaintiff  consent  to  remit  a  certain 
Minn.  96,  107  N.  W.  817,  8  Ann.  portion  of  the  amount.  If  the 
Cas.  902,  citing  Sullivan  v.  Vicks-  plaintiff  does  not  so  consent,  the 
burg,  etc.,  B.  Co.,  (1887)  39  La.  verdict  is  set  aside  and  a  new 
Ann.  800,  2  So.  586,  4  Am.  St.  Rep.  trial  granted. 
239.      The    student    should    notice, 


EXCESSIVE  AND  INADEQUATE  DAMAGES         93 

plaintiff  has  not  had  to  consult  a  physician  or  to  lose 
time.^^* 

30.  Second  Trial. — A  jury  has  no  right  to  consider  the 
fact  that  the  trial  being  held  is  the  second  one  in 
the  cause.  Juries  sometimes  seem  to  increase  dam- 
ages by  reason  of  the  fact  that  the  plaintiff  is  obliged  to 
carry  the  matter  through  more  than  one  trial  in  order  to 
get  damages,  but  this  they  have  no  right  to  do." 

31.  Effect  of  the  Modern  Tendency  Toward  High 
Prices. — It  would  seem  only  natural  and  logical  that, 
with  the  gradual  and  general,  not  to  say  universal,  in- 
crease in  prices  during  recent  years,  larger  and  larger 
verdicts  should  be  allowed  to  stand  in  many  kinds  of 
cases ;  and  this  is  the  tendency.  For  instance,  in  a  per- 
sonal injury  case,  all  of  the  pecuniary  elements  are  larger 
in  amount  now  than  formerly.  Physicians'  and  nurses' 
services,  hospital  accommodations,  drugs,  and  any  other 
things  essential  to  proper  treatment  of  a  personal  in- 
jury, have  advanced  in  cost.  The  plaintiff's  wages  and 
earning  power  lost  are  worth  much  more,  in  terms  of 
money,  than  they  would  have  been  a  few  years  ago.  The 
same  is  true  in  regard  to  property  wrongfully  taken  or 
injured.  In  no  field  must  more  allowance  be  made  for 
the  fact  that  a  case  cited  is  old.  Some  of  the  judicial 
statements  of  forty  years  ago  as  to  the  high  value  of 
money,  and  the  extreme  reluctance  of  courts  of  that  time 
to  cause  much  money  to  change  hands  in  the  form  of  dam- 
ages, read  today  like  antiquarian  curiosities.*^ 

10— Ford  V.  Minneapolis  St.  Ey.  Co.  v.  Payzant,  (1877)  87  111,  125, 

Co.,  (1906)  98  Minn.  96,  107  N.  W.  in  which  it  is  said:    "Twenty-five 

817,  8  Ann.  Cas.  902.  hundred  dollars  is  a  very  large  sum 

11 — Davis    V.    McMillan,    (1905)  of  money,  which  few  men  or  women 

142  Mich.  391,   105  N.  W.  862,  3  accumulate   in   a   lifetime."    How 

L.  R.  A.  (N.  S.)   928,  7  Ann.  Cas.  extremely  out  of  accord  with  pres- 

854,  113  Am.  St.  Rep.  585.  ent  eeonomic  conditions! 

12— "F.  jr.,  Chicagro,  R.  T.  &  P.  R.  The  fact   that  the  money  value 


94  LAW  OF  DAMAGES 

32.  Excessive  Exemplary  Damages  stand  on  a  footing 
similar  to  that  of  excessive  compensatory  damages,  not 
being  sustainable  if  so  large  as  not  to  be  warranted  by 
all  the  circumstances  of  the  case.  In  deciding  whether 
such  damages  are  excessive,  the  court  must  consider  the 
amount  of  actual  damage,  the  circumstances  of  aggrava- 
tion such  as  the  degree  of  malice  shown  by  the  wrong- 
doer, and  the  wealth  of  the  defendant.  As  the  punitive 
element  is  not  pecuniary  and  is  not,  in  most  jurisdictions, 
compensatory,  it  is  not  usually  easy  to  induce  a  court  to 
set  aside  as  excessive  a  verdict  for  exemplary  damages. 
'*In  assessing  such  damages,  the  jury  should  consider 
the  aggravating  and  mitigating  circumstances,  and  may 
refuse  to  award  any  exemplary  damages ;  but  if,  in  their 
judgment,  such  damages  should  be  given,  then  the  amount 
thereof  is  left  to  their  discretion,  subject,  however,  to  the 
approval  of  the  court,  and  if,  in  the  judgment  of  the  court, 
the  damages  awarded  are  too  much,  a  remittitur  may  be 
required  or  a  new  trial  ordered."  ^^ 

CASE  ILLUSTRATIONS 

1.  Plaintiff,  upon  becoming  a  passenger  in  a  first-class  coach 
of  defendant,  found  all  seats  occupied,  although  not  all  were 
being  used  as  seats.  The  conductor  refused  to  see  that  a  seat 
for  plaintiff  was  vacated,  accompanying  his  refusal  with  pro- 
fanity. Judgment  for  plaintiff  for  $75  affirmed.  "That  a  jury 
awarded  the  trivial  sum  complained  of  is  proof  positive  that  no 
undue  prejudice  existed  against  the  corporation.  Let  the  com- 
pany thank  God,  and  take  courage."^* 

of  life  and  health  is  appreciating  on    another   point,    (1918)    282   111. 

and  the  earning  capacity  of  money  565,  118  N.  E.  986. 

is  steadily  depreciating  is  a  factor  13 — Summers    v.    Keller,    (1911) 

to   be   considered     in     determining  152  Mo.  App.  626,  133  S.  W.  1180. 

whether  or  not  a  verdict  for  death  See  also  article  by  writer,  "Exces- 

is  excessive,  and  the  result  of  pas-  sive  Exemplary  Damages — The  Re- 

sion  and  prejudice  on  the  part  of  lation  of  Exemplary  to  Compensa- 

the   jury.     Northern  Trust   Co.   v.  tory  Damages,"  52  American  Law 

Grand     Trunk     Western     R.     Co.,  Review  11. 

(1917)    207  Dl.   App.   11,  reversed  14— Louisville,   N.   O.   &   T.   Ry. 


EXCESSIVE  AND  INADEQUATE  DAMAGES         95 

2.  Plaintiff,  28  or  29  years  old,  was  able  to  work  at  his  usual 
wages  less  than  two  months  after  his  injury  in  question.  His 
permanent  injuries  were :  an  injured  hand,  some  of  the  bones  of 
his  left  hand  being  broken ;  a  large  gash  over  his  left  eye,  with- 
out any  evidence  of  a  broken  bone ;  an  injury  to  the  back  of  his 
head ;  and  some  impairment  of  sight  in  one  eye,  largely  remedied 
by  the  use  of  glasses.  He  also  suffered  slight  temporary  mental 
derangement  for  a  little  less  than  three  years,  and  a  temporary 
injury  to  his  ankle  and  knees.  Held,  that  a  verdict  for  $24,000  is 
grossly  excessive  and  neeessarilj'^  given  under  the  influence  of 
passion  and  prejudice,  and  that  it  is  unconscionable  to  the  extent 
of  more  than  half  that  sum.^^ 

3.  A  university  graduate  in  electrical  engineering,  23  j-^ears 
old,  healthy,  intelligent,  working  as  a  lineman,  was  injured 
through  the  negligence  of  the  defendant.  A  large  amount  of 
electricity  passed  through  his  body,  making  the  muscles  of  a 
part  of  his  body  rigid,  and  later  there  developed  involuntar>'^ 
shaking  and  jerking  of  the  muscles  of  the  arm,  leg,  and  head,  with 
pain  and  soreness,  A  condition  of  traumatic  neurasthenia  de- 
veloped. His  condition  improved,  but  an  unreasoning  dread  of 
high-tension  wires  developed,  which  was  likely  to  interfere  with 
his  work  in  his  chosen  profession.  A  verdict  of  $7,500  is  not 
excessive.^  ^ 

4.  Two  of  plaintiff's  ribs  were  broken,  and  he  suffered  a  con- 
tusion of  hip  and  ankle.  No  permanent  injury  was  shown. 
Held,  that  a  verdict  of  $250  was  not  inadequate,  though  small.^'' 

5.  "Plaintiff  was  knocked  senseless,  his  ear  was  cut  in  two,  he 
received  a  severe  gash  on  his  head,  his  face  was  mashed  and 
bruised,  and  his  leg  was  severely  sprained.  After  recovering 
consciousness,  he  was  seized  with  vomiting,  which  continued 
for  several  hours.  He  was  laid  up  for  several  days,  suffering 
great  pain,  and  incurring  expenses  for  board  and  medical  treat- 
ment, and  did  not  fully  recover  for  some  weeks.  It  is  absurd 
to  consider  this  verdict  of  $100  as  affording  reparation  for  such 

Co.  V.  Patterson,   (1891)   69  Miss.  Power,  etc.,  Co.,  (Vt.  1917)  99  Atl. 

421,  13  So.  697,  22  L.  R.  A.  259.  1017. 

15 — Roberts  v.  Pacific  Telephone,  17 — Lanier  v.  Hammond  Lumber 

etc.,  Co.,  (1916)  93  Wash.  274,  160  Co.,    (1917)    141    La.    829.    75    So. 

Pac.  965.  738. 

16 — Summerskill      v.      Vermont 


96  LAW  OP  DAMAGES 

injuries.  Indeed,  it  would  scantily  compensate  the  trouble  and 
expense  of  the  lawsuit  which  he  was  compelled  to  bring  in  order 
to  vindicate  his  rights.  We  think  an  addition  of  $500  to  the  ver- 
dict will  mete  out  only  moderate  justice."  ^^ 

18 — Sullivan  v.  Vickaburg,  etc, 
K.  Co.,  (1887)  39  La.  Ann.  800, 
2  So.  586,  4  Am.  St.  Bep.  239, 


CHAPTER  IX 
Liquidated  Damages  and  Penalties 

33.  In  General. — Liquidated  damages  are  damages 
settled  upon  as  a  stated  sum,  to  be  paid  to  one  of  the  par- 
ties to  a  contract  as  compensation  for  a  breach  by  the 
other  party.  Where  a  sum  named  is  construed  by  a 
court  as  being  liquidated  damages,  such  sum  is  the 
amount  of  recovery  for  a  breach.^ 

A  penalty,  which  differs  in  its  nature  very  widely  from 
liquidated  damages,  is  a  sum  named  in  a  contract,  to  be 
paid  b}'  a  defaulting  party  as  punishment  for  his  breach. 
Unlike  liquidated  damages,  a  penalty  is  not  regarded  as 
constituting  an  agreed  measure  of  compensation;  it  is 
considered  as  a  punishment  agreed  upon  beforehand. 
The  practical  purpose  of  the  parties  in  naming  such  a 
sum,  is  to  make  the  agreement  for  the  penalty  a  kind  of 
security  for  the  performance  of  the  contract.^  If  their 
purpose  is  to  make  a  penal  sum  absolutely  due  in  toto  in 
case  of  breach,  their  purpose  wdll  not  be  given  effect;  a 
sum  which  would,  on  principles  to  be  stated  hereafter,  be 
unreasonable  and  unconscionable,  ^vill  not  be  in  any  way 
determinative  of  the  amount  to  be  assessed  for  a 
breach.  A  court  does  not  feel  itself  compelled  to  regard 
a  penalty  as  being  either  the  maximum  or  minimnm 
amount  to  be  assessed  for  a  breach,  where  the  penalty  is 
named  in  a  mere  contract,  although  it  is  regarded  as  the 

1 — Lowe  V.  Peers,  (1768)  4  Burr.  its  breach,  but  rather  as  a  punish- 

2225,  98  Eng.  Repr.  160.  ment  for  default,  or  by  way  of  se- 

2 — "A     penalty,     in     eontradis-  eurity     for     the     actual     damages 

tinetion   to  liquidated  damages,  is  which  may  be  sustained  by  reason 

a  sum  inserted  in  a   contract,  not  of    nonperformance." — 19    Am.    & 

as  the  measure  of  compensation  for  Eng.  Enc.  of  Law   (2d  ed.)   395. 

97 


98 


LAW  OF  DAMAGES 


maximum  of  liability,  where  it  is  named  in  a  penal  bond. 
Where  a  sum  named  in  a  contract  is  construed  by  a  court 
as  being  a  penalty,  it  cannot  be  collected  in  full  as  a  stated 
compensation;  only  damages  for  the  actual  loss  occa- 
sioned by  the  default  will  be  assessed,  whether  such  dam- 
ages be  greater  or  less  than  the  penalty  named.^  Where 
a  penalty  is  named  in  either  a  statutory  undertaking* 
or  a  penal  bond,  the  sum  so  named  is  the  limit  of  recov- 
ery ;  and,  while  a  lesser  amount  may  be  recovered  on  the 
bond,  a  greater  cannot  be.*^ 

34.  LangTia,ge  Not  Conclusive. — Where  a  sum  is  named 
as  ** liquidated  damages,"  it  may  be  held  to  be  a  penalty, 
despite  the  words  of  the  parties ;  ^  and,  even  where  the 


3 — "Before  the  passage  of  8  & 
9  Wm.  m,  in  an  action  of  debt 
on  an  agreement,  performance  of 
which  was  secured  by  a  penalty, 
the  recovery  was  for  the  entire 
penalty.  Relief  was  solely  in  equi- 
ty, and  originally  was  only  granted 
in  cases  of  fraud,  extremity,  or 
accident.  The  effect  of  this  stat- 
ute was  to  put  actions  for  the 
recovery  of  penalties  for  default 
in  the  performance  of  agpreements 
on  the  same  basis  as  actions  di- 
rectly upon  the  agreement  to  re- 
cover damages,  with  respect  to  the 
quantum  of  recovery;  in  other 
words,  to  provide  substantially  the 
same  measure  of  relief  in  an  ac- 
tion at  law  as  the  defendant  might 
have  obtained  in  a  court  of  equi- 
ty."—13  Cyc.  89. 

4 — Common  examples  of  statu- 
tory undertaking  are:  the  bond 
given  by  a  plaintiff  in  an  injunc- 
tion suit,  as  security  to  the  de- 
fendant for  damages  caused  by  the 
issuance  of  an  interlocutory  iniunc- 
tion,  such  damages,  within  the 
amount  of  the  penalty,  to  be  col- 


lected by  the  defendant  if  the  in- 
junction is  found  to  have  been 
wrongfully  issued;  and  the  bond 
given  for  a  very  similar  purpose  in 
attachment  or  replevin. 

5— Wood  V.  State,  (1886)  66  Md. 
61,  5  Atl.  476;  Fraser  v.  Little, 
(1865)  13  Mich.  195,  87  Am.  Dec. 
741.  The  latter  case  says,  in  re- 
gard to  a  replevin  bond:  "This 
statute,  I  think,  fixes  the  limit  of 
the  sureties'  liability,  so  that  in 
executing  a  bond  as  surety,  we 
must  understand  that  he  intends 
and  only  undertakes  to  become  li- 
able to  the  extent  of  the  penal 
sum  mentioned,  and  no  further,  and 
that  the  statute  requires  nothing 
more  from  him." 

See  also  Parit  v.  Wallis,  (1796) 
2  U.  S.  252,  1  L.  ed.  370. 

6 — Grand  Tower  Co.  v.  Phillips, 
(1874)  23  Wall.  (U.  S.)  471,  23  L. 
ed.  71;  Wyraan  v.  Robinson,  (1882) 
73  Me.  384,  40  Am.  Rep.  360; 
Wheatland  v.  Taylor,  (1883)  29 
Hun    (N.    Y.)    70. 

"The  name  by  which  it  is  called 
is  of  but  slight  weight." — Kunkle 


-^    "-     P   V  ■     .-> 
i^  tU   Kf  V 

LIQUIDATED  DAMAGES  99 

sum  is  agreed  upon  ''as  liquidated  damages,  and  not  as 
a  penalty,"  the  court  does  not  feel  itself  bound  to  give 
effect  to  the  stipulation  as  for  liquidated  damages,  and 
so  may  call  the  sum  a  penaltyJ  The  use  of  the  term 
"penalty"  in  a  contract  is  not  conclusive;  ^  but  it  seems 
to  be  more  nearly  conclusive  than  does  the  use  of  the 
term  "liquidated  damages."® 

The  terms  "forfeit"  and  "forfeiture"  are  sometimes 
construed  as  for  penalties,^''  and  sometimes  as  for  liqui- 
dated damages.^^  These  and  all  other  terms  used  in  this 
connection,  are  not  in  themselves  conclusive  as  to  their 
intended  meaning  or  as  to  the  effect  given  them  by  a 
court.  Circumstances  play  a  part  here,  just  as  where 
the  terms  "penalty"  and  "liquidated  damages"  are 
used ;  and  the  intention  of  the  parties  must  be  gathered 
not  only  from  the  contract  itself,  but  from  circumstances. 
Furthermore,  since  not  only  the  intention  of  the  parties 
is  relevant,  but  the  reasonableness  of  any  amount  stated 
as  liquidated  damages,  as  we  shall  see,  is  also  in  issue, 
mere  words  are  far  from  being  the  determining  factor. 

35.  Liquidation  of  Damages  Limited  in  Its  Effect,  Ac- 
cording to  the  Agreement  of  the  Parties. — Where  the 
parties  stipulate  damages,  the  effect  of  their  stipulation 
is  limited  to  those  contingencies  which  they  have  within 
their  contemplation.  Their  stipulation  of  certain  liqui- 
dated damages  in  the  event  of  a  breach,  will  not  be  of  ef- 

V.  Wherry,  (1899)  189  Pa.  198,  42  771.     The  word  "fine"  has  been 

Atl.  112.  held  to  indicate  a  penalty.    Laub- 

7 — Chicago   House-Wrecking   Co.  enheimer  v.  Mann,  (1865)   19  Wis. 

V.  United  States,   (1901)   106  Fed.  519.      An    agreement    "to    forfeit 

385,  45  C.  C.  A.  343,  53  L.  R.  A.  and  pay"  has  been  held  to  liqui- 

122.  date  damages.     Cheddick's  Execu- 

8— Pierce  v.  Fuller,  (811)  8  Mass.  tor  v.  Marsh,  (1848)  21  N,  J.  Law 

223,  5  Am.  Dec.  102,  463, 

9— Tayloe   v.   Sandiford,    (1822)  11— Hall    v,    Crowley,    (1862)    5 

7  Wheat.  (U.  S.)  13,  5  L.  ed.  384,  Allen    (Mass.)    304,    81    Am.   Dec. 

10 — Van  Buren  v,  Digges,  (1850)  745, 
52  IT.  S.  (11  How.)  46],  13  L.  ed. 


100  LAW  OF  DA]\IAGES 

feet  as  to  any  other  kind  of  breach  than  that  kind  for 
which  the  parties  intend  a  liquidation  of  damages. 

A  valid  agreement  for  liquidated  damages  in  a  cer- 
tain sum  per  day  for  each  day  that  a  building  remains 
uncompleted,  does  not,  in  the  event  of  a  total  breach  and 
abandonment  by  the  contractor,  authorize  a  permanent 
continuance  of  the  accrual  of  the  stipulated  damages; 
for  the  other  party  must,  within  a  reasonable  time  after 
the  breach,  take  measures  to  avoid  damage  by  procuring 
others  to  do  the  work.  Furthermore,  such  an  agreement 
is  not  available  to  bar  the  plaintiff  from  recovering  the 
damages  actually  sustained  by  him,  as  it  is,  in  such  a  case, 
the  intention  of  the  parties  to  have  the  liquidated  dam- 
ages paid  only  on  the  actual  but  tardy  completion  of  the 
work,  and  not  upon  its  abandonment,  which  is  a  contin- 
gency not  contemplated  by  the  parties  to  such  a  contract. 
Abandonment  brought  an  end  to  the  agreement. ^^ 

36.  Principles  of  Differentiation. — Whether  a  sum 
named  is  liquidated  damages  or  is  a  penalty,  is  to  be  de- 
termined, it  is  usually  said,  by  the  actual  intention  of  the 
parties. ^^  Whether  the  stipulation  is  for  liquidated  dam- 
ages or  for  a  penalty,  may  be  gathered  from  the  contract 
itself  and  from  circumstances.  The  certainty  or  uncer- 
tainty of  the  amount  of  damage  likely  to  result  from  a 
breach,  and  the  reasonableness  or  unreasonableness  of 
the  amount  named,  are  important.  If  the  amount  of 
damage  to  be  suffered  in  case  of  breach  is  positively  a 
certain  sum,  and  the  parties  have  named  a  sum  mate- 
rially larger,  it  is  clear  that,  notwithstanding  any  lan- 
guage they  have  used  indicating  otherwise  and  even  not- 
withstanding any  intention  they  may  have  had  to  con- 
stitute the  sum  liquidated  damages,^^  they  have  stipulated 

12— Murphy  v.  United  States  Fi-  (1840)    11    N.    H.    234;    Slosson    v. 

delity,   etc.,   Co.,    (1905)    91   N.   Y.  Beadle,  (1810)  7  Johns.  72. 

Supp.   582,   100  App.   Div.  93.  14— Jaquith    v.    Hudson,    (1858) 

13 — Chamberlain       v.       Bagley,  5  Mich.  123.     "The  real   question 


LIQUIDATED  DAMAGES 


101 


for  a  penalty.^^  A  sum  that  is,  under  all  circumstances, 
unconscionably  large,  will  not  be  construed  as  liquidated 
damages.  If  the  amount  named  as  liquidated  damages 
is  such  as  may  properly  have  been  in  the  contemplation 
of  the  parties  as  only  fair  compensation  in  case  of 
breach,  the  stipulation  is  construed  as  being  for  liqui- 
dated damages. ^"^    Where  the  parties  have  named  a  sum 


in  this  class  of  cases  will  hs  found 
to  be,  not  what  the  parties  in- 
tended, but  whether  the  sum  is,  in 
fact,  in  the  nature  of  a  penalty; 
and  this  is  to  be  determined  by 
the  magnitude  of  the  sum,  in  con- 
nectiorn  with  the  subject  matter, 
and  not  at  all  by  the  words  or  the 
understanding  of  the  parties.  The 
intention  of  the  parties  cannot  al- 
ter it.  While  courts  of  law  gave 
the  penalty  of  the  bond,  the  par- 
ties intended  the  payment  of  the 
penalty  as  much  as  they  norw  in- 
tend the  payment  of  stipulated 
damages;  it  must  therefore,  we 
think,  be  very  obvious  that  the 
actual  intention  of  the  parties, 
in  this  class  of  cases,  and  relating 
to  this  point,  is  wholly  immaterial; 
and  though  the  courts  have  very 
generally  prorfessed  to  base  their 
decisions  upon  the  intention  of  the 
parties,  that  intention  is  not,  and 
can  not,  be  made  the  real  basis 
of  these  decisions." 

Although  the  doctrine  set  forth 
in  it  is  questiornable,  the  following 
extract  from  a  comparatively  re- 
cent opinion  of  the  United  States 
Supreme  Court  is  worthy  of  our  no- 
tice: "The  courts  at  one  time 
seemed  to  be  quite  strong  in  their 
views,  and  would  scarcely  admit 
that  there  ever  was  a  valid  con- 
tract providing  for  liquidated  dam- 
ages. Their  tendency  was  to  con- 
strue the  language  as  a  penalty,  so 


that  nothing  but  the  actual  dam- 
ages sustained  by  the  party  ag- 
grieved could  be  recovered.  Sub- 
sequently the  courts  became  more 
tolerant  of  such  provisions,  and 
have  now  become  strongly  inclined 
to  allow  parties  to  make  their  own 
contracts  and  to  carry  out  their  in- 
tentions, even  when  it  would  result 
in  the  recovery  of  an  amount  stated 
as  liquidated  damages,  upon  proof 
of  the  violation  of  the  contract, 
and  without  proof  of  the  damages 
actually  sustained.  »  *  «  The 
question  always  is:  What  did  the 
parties  intend  by  the  language 
used?  When  such  intention  is  as- 
certained, it  is  ordinarily  the  duty 
of  the  court  to  carry  it  out." — 
United  States  v.  Bethlehem  Steel 
Co.,  (1907)  205  U.  S.  105,  51  L. 
ed.  731,  27  Sup.  Ct.  450;  quoted 
with  approval,  Banta  v.  Stamford 
Motor  Co.,  (1914)  89  Conn.  51, 
92  Atl.  665. 

The  statement  in  Jaquith  v. 
Hudson  seems  more  in  accord  with 
what  courts  have  usually  done  in 
such  cases  than  does  the  Banta 
case. 

15— Kemble  v.  Farren,  (1829)  6 
Bing.   141,  130  Eng.  Repr.   1234, 

16— Keeble  v,  Keeble,  (1888)  85 
Ala.  552,  5  So.  149;  Monmouth  Park 
Association  v.  Wallis  Iron  Works, 
(1893)  55  N.  J.  Law  132,  26  Atl. 
140,  19  L.  R.  A.  456,  39  Am.  St. 
Eep.    626;    Curtis    v.    Van    Bergh, 


102  LAW  OF  DAMAGES 

so  large  as  to  be  out  of  all  proportion  to  any  possible 
damage  that  might  result  from  a  breach,  they  have  stip- 
ulated for  a  mere  penalty,  even  though  the  exact  amount 
of  possible  damage  is  uncertain.^"^  So  it  is  where  A 
agrees  to  pay  B  $10  on  a  certain  date,  and  to  pay  him 
$50  in  case  of  default  in  payment,  or  where  A  agrees  to 
supply  B  with  $5  worth  of  sugar,  and  to  pay  B  $100  in 
case  of  breach,  it  appearing  that  B  could  not  be  injured 
by  the  breach  to  an  extent  even  approximating  $100. 
Where  two  parties  contract  in  regard  to  a  number  of  de- 
tails, some  of  much  importance  and  some  of  little,  and 
agree  that,  upon  a  breach  of  the  contract  as  to  any 
detail,  a  certain  sum  shall  be  paid,  the  stipulation  is  for 
a  penalty.^^  To  hold  otherwise  might  make  it  possible 
to  collect  a  thousand  dollars  for  damage  that  could  not 
possibly  exceed  one  dollar.  Likewise,  where  an  agree- 
ment contains  various  stipulations,  damages  for  the 
breach  of  some  stipulations  being  capable  of  measure- 
ment by  a  precise  sum  far  below  the  amount  stated,  a 

(1899)  161  N.  Y.  47,  55  N.  E.  398;  actually   cost  $200,   and   intimates 

Illinois  Central  R.  Co.  v.  Southern  that    the    same    conclusion    would 

Seating  &  Cabinet  Co.,  (1900)   104  have   been   reached  if   the  breach 

Tenn.  568,  58  S.  W.  303,  50  L.  E.  had  occasioned  a  loss  of  only  $20. 

A.  729.  This  case  can  hardly  be  said  to  be 
17 — Clement  v.  Schuylkill  River  in   accord   with   the  weight  of  au- 

R.  Co.,  (1890)  132  Pa.  445,  19  Atl.  thority.     Of  course,  it  could  never 

274,  276.  be  laid  down  as  a  rule  of  law  that 

18 — Kemble  v.  Farren,  (1829)   6  liquidated   damages    could   not   be 

Bing.    141,    130    Eng.    Repr.    1234;  given    effect    as    such,    merely    be- 

Pye  V.  British  Automobile  Commer-  cause  it  is  seen  at  the  time  of  the 

cial  Syndicate  Limited,  L.  R.  I.  K.  trial  that  the  actual  loss  is  much 

B.  1906,  425.  Mayor  of  Brunswick  smaller  than  the  amount  named; 
V.  Aetna  Indcnity  Co.,  (1908)  4  but  the  contract  involved  in  this 
Ga.  App.  722,  62  S.  E.  475;  quoted  case  obviously  covered  many  mat- 
with  approval  in  George  W.  Muller  ters  of  varying  importance,  and 
Bank  Fixture  Co.  v.  Georgia  Ry.  the  sum  named  purported  to  be  for 
&  Electric  Co.,  (1916)  145  Ga.  484,  compensation  for  a  breach  of  any 
89  S.  E.  615.     But  see  Barrett  v.  stipulation,  with   no  apparent  dis- 

X^^^  I    Monro,    (1912)    69  Wash.  229,   124      crimination  between  matters  great 
Pac.  369,  which  permits  a  party  to      and  matters  small, 
obtain  $1200  for  a  breach  that  had 


LIQUIDATED  DAMAGES  103 

figure  named  to  be  paid  in  case  of  the  non-performance  of 
any  part  of  the  contract,  is  a  penalty.^^ 

Where  the  intention  is  not  clear  to  have  it  so,  a  sum 
named  mil  not  be  regarded  as  liquidated  damages.^''  In 
doubtful  cases,  courts  feel  that  they  can  come  nearer  to 
administering  real  justice  by  calling  the  stipulated 
amount  a  penalty,  since,  by  so  doing,  they  can  leave  the 
question  of  amount  of  damages  open  and  thus  make  it 
possible  to  assess  actual  damages  as  in  an  ordinary  case 
wherein  no  stipulation  of  any  sum  has  been  made.^^ 

If  the  parties  stipulate  a  certain  amount  as  liquidated 
damages  for  an  entire  breach  of  the  contract,  and  there 
follows  a  valid  part  performance,  there  can  be  a  recovery 
of  actual  damages  only,  the  amount  stated  as  liquidated 
damages  being  of  effect  only  in  case  of  an  entire  breach.^^ 

37.  Agreed  Valuation. — It  sometimes  happens  that 
the  parties  to  a  contract  agree  that  one  of  the  parties 
shall  return  or  deliver  certain  property  to  the  other,  and 
that  if  he  does  not,  he  will  pay  for  it  at  an  agreed  valua- 
tion. The  figure  agreed  upon  is  considered  liquidated 
damages,  and  therefore  it  may  be  collected  in  full  in  case 
of  default.^^ 

38.  Deposits. — A  deposit  made  in  order  to  insure  per- 
formance of  an  agreement  by  the  depositor,  may  be  a 
penalty;  it  may  be  liquidated  damages;  or  it  may  be 
neither.     In  order  to  determine  whether  the  deposit  is 

19 — Kemble    v.    Farren,    (1829)  as  a  penalty  and  not  as  liquidated 

6  Bing.  141,  130  Eng.  Repr.  1234.  damages,  because  then  it  may  be 

20 — Colwell  V.  Lawrence,  (1868)  apportioned    to    the    loss    actually 

38  N.  Y.  71,  36  How.  Pr.  306,  aff.  sustained." — Shaw,  C.  J.,  in  Shute 

36    Barb.    643,    24    How.    Pr.    324;  v.  Taylor,  (1842)   5  Mete.  (Mass.) 

Dennis  v.  Cummins,  (1803)  3  Johns.  61. 
Cas.  (N.  Y.)   297,  2  Am.  Dee.  160.  22 — Shute  v,  Taylor,  supra. 

21 — "In  general,  it  is  the  ten-  23 — Sun    Printing    &   Publishing 

dency  and  preference   of  the  law,  Association    v,   Moore,    (1902)    183 

to  regard  a  sum,  stated  to  be  pay-  IT.   S.  642,  46  L.  ed.  366,  22  Sup. 

able  if  a  contract  is  not  fulfilled,  Ct.    240. 


104  LAW  OF  DAMAGES 

intended  to  be  held  as  liquidated  damages  in  case  of  a 
breach,  the  agreement  and  the  circumstances  must  be 
considered,  as  in  other  cases.^* 

39.  Illegfal  Stipulation  of  Damages. — Sometimes  parties 
have,  in  order  to  avoid  statutory  prohibition  of  usury, 
contracted  for  ** liquidated  damages"  in  a  sum  in  excess 
of  the  amount  permitted  by  law  to  be  charged  as  interest. 
Such  a  stipulation,  whatever  the  terms  employed  by  the 
parties,  is  not  enforced  as  for  liquidated  damages.  It 
would  not  be  public  policy  to  permit,  under  a  different 
name,  the  usury  which  is  prohibited  by  statute.^^ 

40.  Interest  on  Liquidated  Damages. — Since  a  stipu- 
lation for  liquidated  damages,  when  given  effect  as  such, 
is  for  a  stated  sum,  which  has  become  due  at  a  definite 
time,  the  date  of  the  occurrence  of  the  breach,  it  follows 
that  interest  on  the  liquidated  damages  from  the  time  of 
the  breach  should  be  allowed,  in  any  state  in  which  in- 
terest is  made  a  part  of  verdicts  for  sums  liquidated  and 
overdue ;  ^®  but  this  rule  does  not  always  prevail.^^ 

41.  Alternative  Agreements.  —  Where  one  person 
merely  agrees  that  he  will  do  a  certain  act  or  that  he 
will  pay  the  other  party  to  the  agreement  a  certain  sum 
of  money,  the  contract  is  what  is  known  as  an  alternative 
agreement,  which  is  a  matter  neither  of  liquidated  dam- 
ages nor  of  penalty.  The  amount  stipulated  in  such  an 
agreement  is  merely  a  price  fixed  for  what  the  contract 
permits  him  to  do  if  he  pays.^^ 

24— Willson   v.  Mayor   of  Balti-  2&— Little   v.   Banks,    (1881)    85 

more,    (1896)    83   Md.  203,  34  Atl.  N.  Y.  258;  Winch  v.  Mutual  Benefit 

774,  55  Am.  St.  Rep.   339;   Caesar  Ice  Co.,  (1881)  86  N.  Y.  618. 

V.  Rubinson,  (1903)  174  N.  Y.  492,  For  general  principles,  see  Chap- 

67  N.   E.  58.  ter  XXVI,  "Interest." 

25— Clark  v.  Kay,  (1858)  26  Ga.  27— Hoagland    v.    Segur,    (1876) 

403;   Chapman  v.  Comings,   (1870)  38  N.  J,  Law  230, 

43  Vt.  16.  28- Smith    v.  Bergenren,   (1891) 


LIQUIDATED  DAMAGES  105 

CASE  ILLUSTRATIONS 

1.  "I  do  hereby  promise  Mrs.  Catherine  Lowe,  that  I  will  not 
marry  with  any  person  besides  herself:  if  I  do,  I  agree  to  pay 
to  the  said  Catherine  Lowe  £1,000  within  three  months  next 
after  I  shall  marry  anybody  else."  Held,  a  stipulation  for  li- 
quidated damages."** 

2.  A  sells  a  partnership  interest  to  B,  and  contracts  not  to 
engage  in  the  mercantile  business  in  Trenton  within  three  years, 
and  agrees  to  forfeit  $1,000  as  damages  for  non-performance  of 
the  stipulation.  Upon  A's  breaking  the  agreement,  B  can  re- 
cover $1,000  damages,  as  the  stipulation  is  in  regard  to  damages 
of  which  the  amount  is  uncertain  and  incapable  of  accurate  proof 
in  court.2® 

3.  Defendant  covenants  that  he  will  pay  plaintiff  £1,000  "as 
and  for  liquidated  damages  and  not  by  way  of  a  penalty,"  if 
defendant  shall  violate  his  covenant  not  to  practice  surgery  or 
reside  within  two  and  one-half  miles  of  No.  28  Dorset-Crescent. 
Defendant  takes  up  his  residence  a  few  feet  within  the  prohibited 
distance.  Plaintiff  may  recover  the  £1,000.  "Where  a  contract 
consists  of  stipulations,  of  which  the  breach  cannot  be  measured, 
the  sum  named  as  liquidated  damages  is  agreed  upon  as  such, 
and  not  as  a  penalty.  All  the  stipulations  here  were  of  uncer- 
tain value.^^ 

4.  Defendant,  selling  his  bakery  to  plaintiff  for  $1,400,  con- 
tracted not  to  enter  the  bakery  business  within  a  radius  of  five 
blocks  from  the  bakery  sold,  and  agreed  to  pay  plaintiff  $2,000 
in  case  of  his  violation  of  the  agreement.  Plaintiff  being  no 
longer  in  the  bakery  business  in  the  city,  defendant  opened  a 
bakery  in  the  area  prohibited  bj''  the  contract.  The  $2,000  can- 
not be  assessed  as  liquidated  damages.  The  amount  was  not  de- 
scribed in  the  contract  as  being  either  liquidated  damages  or  a 
penalty;  and,  in  such  a  case,  the  tendency  of  courts  is  to  call  it 

153   Mass.   236,   26   N.    E.    690,   10  30— .Jaquith    v.    Hudson,    (1858) 

L.  E.  A.  768;  Pearson  v.  Williams'  5  Mich.  123. 

Administrators,    (1840)    24    Wend.  31 — Atkyns    v.    Kinnier,    (1850) 

(N.  Y.)   244.  L.  E.  4  Exch.  776. 

29— Lorwe  V.  Peers,  (1768)  4 
Burr.  2225,  98  Eng.  Eepr.  160. 
(Decided  by  Lord  Mansfield.) 


106  LAW  OF  DAMAGES 

a  penalty.    It  also  appears  from  the  evidence  that  plaintiff  suf- 
fered no  damage  from  the  breach.^- 

5.  Defendant  sold  his  laundry  to  plaintiff,,  agreeing  not  to 
engage  in  the  laundry  business  in  the  city,  for  five  years,  with- 
out permission  of  plaintiff,  and  promising  to  pay  plaintiff  one  dol- 
lar per  day  for  the  time  he  might  so  engage  in  business  in  viola- 
tion of  the  contract.  Defendant  violated  the  agreement.  The 
one  dollar  per  day  is  recoverable  as  liquidated  damages.^^ 

6.  Defendant  contracted  to  build  a  pleasure  yacht  for  plaintiff 
and  to  have  it  ready  for  delivery  by  September  1,  1911.  De- 
fendant further  agreed  that  he  would  pay  the  plaintiff  $15  per 
day  for  any  delay  in  delivery  after  the  specified  date.  Held, 
liquidated  damages.  "The  extent  that  the  plaintiff  might  have 
been  injured  by  delay  in  the  completion  of  the  yacht  which  he 
was  desirous  of  using  in  the  fall  months  for  cruising  in  the 
Chesapeake  and  Florida  waters,  and  the  measure  of  it  in  money, 
both  lie  in  a  marked  degree  in  the  field  of  uncertainty. ' '  ^* 

7.  A  contractor  agreed  to  erect  a  building  for  a  church,  and 
to  pay  $10  per  day  for  any  delay  in  completing  it  after  September 
1, 1913.    Held,  liquidated  damages.^^ 

8.  A  agrees  to  build  a  pumping-station  for  a  city,  promising  to 
pay  $50  for  each  day  of  delay  beyond  the  date  agreed  upon. 
Held,  a  contract  for  liquidated  damages.  "  It  is  beyond  question 
that  there  could  be  no  estimate  of  damages  or  compensation  for 
the  inconvenience  to  the  public  or  damage  resulting  from  a 
failure  to  complete  the  contract  as  agreed,  and  if  the  parties  did 
not  intend  that  the  stipulated  sum  should  be  liquidated  damages 
they  did  not  intend  that  any  damages  could  be  recovered,  since 
none  could  be  proved.  "2° 

32 — Eadloff  v.  Haase,  (1902)  196  per  week  for  each  vessel  not  deliv- 

m.  365,  63  N.  E.  729.  ered  in  contract  time. — Clydebank 

33 — Augusta  Steam  Laundry  Co.  Engineering  Co.  v.  Don  Jose  Kamos 

V.  Debow,   (1904)   98  Me.  496,  57  Yzquierdo  y  Casteneda,  L.  R.  1905 

Atl.   845.  App.  Cas.  6. 

34 — 'Banta    v.    Stamford    Motor  35 — Walsh  v.  Methodist  Episco- 

Co.,    (1914)    89    Comn.   51,   92   Atl.  pal  Church  South,  (Tex.  Civ.  App. 

665.     So  it  was  held  to  be  liqui-  1915)  173  S.  W.  241. 

dated  damages,  where  C,  contract-  36 — Parker-Washington     Co.     v. 

ing  to  build  torpedo-boat  destroy-  Chicago,    (1915)    267   111.    136,   107 

ers    for    the    Spanish    government,  N.  E.  872,  Ann.  Cas.  1916  C  337. 
agreed  to  pay  a  * '  penalty ' '  of  £500 


LIQUIDATED  DAMAGES  107 

9.  Defendant  contracted  to  furnish  plaintiff,  for  use  in  build- 
ing a  court  house,  $13,000  worth  of  terra  cotta,  to  be  manu- 
factured especially  for  the  purpose;  and  defendant  further 
agreed  to  pay  plaintiff  $50  ' '  liquidated  damages ' '  for  each  day 's 
delay.  For  a  delay  of  29  days,  the  plaintiff  cannot  recover  on 
the  contract  stipulation,  since  it  is  for  a  penalty  and  not  for 
liquidated  damages.^'^ 

10.  The  defendant  contracted  to  act  as  a  principal  comedian 
at  the  plaintiff's  theater,  during  four  seasons,  and  to  conform 
to  the  regulations  of  said  theater;  and  the  plaintiff  agreed  to 
pay  the  defendant  £3  6s.  8d.  per  night.  The  agreement  contained 
a  clause,  that  if  either  party  should  not  fulfill  the  agreement,  or 
any  part  thereof,  or  any  stipulation  therein,  such  party  should 
pay  the  other  the  sum  of  £1,000  liquidated  damages.  The  de- 
fendant refused  to  act  during  the  second  season.  The  jury 
assessed  plaintiff's  damages  at  £750.  Plaintiff  contends  that  he 
should  have  been  awarded  the  £1,000  as  liquidated  damages. 
His  contention  is  not  sound ;  the  £1,000  is  a  penalty.  The  parties 
intended  it  to  relate  to  even  so  ascertained  and  disproportionately 
small  a  matter  as  a  single  breach  of  plaintiff's  duty  to  pay 
defendant  his  daily  wage,  or  a  mere  violation  of  theater  rules 
by  defendant,  for  which  such  rules  themselves  set  certain  pen- 
alties. * '  That  a  very  large  sum  should  become  immediately  pay- 
able, in  consequence  of  the  non-payment  of  a  very  small  sum, 
and  that  the  former  should  not  be  considered  a  penalty,  appears 
to  be  a  contradiction  of  terms.  "^'^ 

11.  A  agreed  to  furnish  B  1,000  pounds  of  milk  each  day  for 
5  years,  for  which  defendants  were  to  pay  12  cents  per  gallon. 
A  further  promised  to  pay  as  liquidated  damages  5  cents  per 
gallon  not  furnished.    Held,  liquidated  damages,^^ 

12.  A  employed  B  as  manager  of  a  store,  B  agreeing  not  to 
become  intoxicated,  and,  in  the  event  of  his  becoming  so,  to  pay 
$1,000  as  liquidated  damages.  Held,  that,  upon  becoming  in- 
toxicated, B  must  pay  A  $1,000.    The  damage  resulting  from  the 

37 — ^Northwestern    Terra    Cotta  39 — Mondamin    Meadows    Dairy 

Tile    Co.    V.    Caldwell,    (1916)    234  Co.  v.  Brudi,  (1904)  163  Ind.  642, 

Fed.  491.     See  note,  26  Yale  L.  J.  72  N.  E.  643. 
155. 

38— Kemble  v.  Farren,  (1829)  6 
Bing.  141,  130  Eng.  Eepr.  1234. 


108  LAW  OF  DAMAGES 

breach  could  not  be  ascertained  with  any  degree  of  certainty, 
and  the  amount  agreed  upon  is  not  disproportionate  to  the 
damages  which  may  have  been  actually  sustained  in  this  case.^^ 

13.  Plaintiffs  and  defendants  conducted  rival  department 
stores.  Plaintiffs  sold  defendants  $46,000  worth  of  goods,  but 
remained  in  business  under  the  name  "Famous,"  as  before. 
Defendants  bound  themselves  in  the  penal  sum  of  $5,000  as 
liquidated  damages,  not  to  advertise  any  other  goods  as  having 
been  bought  from  plaintiffs.  Defendants  violated  the  agree- 
ment, using  the  terms,  "Famous,"  and  "Famous  Stock,"  in 
connection  with  goods  not  purchased  of  plaintiffs.  The  sum  of 
$5,000  may  be  recovered  as  liquidated  damages.^^ 

14.  A  &  Co.  leased  to  B  an  apartment  house,  at  $600  per 
month,  for  5  years,  with  a  stipulation  that  B  deposit  with  A 
&  Co.  $1,200,  to  be  held  by  lessors  as  an  indemnity  fund  to  be 
applied  as  liquidated  damages  for  any  loss  lessors  might  sus- 
tain by  reason  of  any  violation  by  lessee.  B  fell  into  arrears  10 
days  in  payment  of  rent.  A  &  Co.  brought  suit  for  possession 
of  the  premises.  B  then  surrendered,  and  brought  an  action  to 
recover  the  $1,200  deposit.  Held,  that  B  cannot  recover  the  $1,200 
or  any  part  of  it,  as  the  amount  is  not  merely  security  for  rent, 
but  is  liquidated  damages.  A  loss  of  the  tenancy  of  B  might 
cause  damage  to  lessors  difficult  of  ascertainment,  whether  re- 
sulting from  B  's  surrender  or  from  A  &  Co.  's  election  to  termi- 
nate the  lease  after  B  's  def ault.*^ 

15.  Defendant  agreed  to  convey  a  certain  right  of  way  to 
plaintiff,  and  gave  a  bond  for  $1,000  and  $100  attorney's  fees, 
to  insure  performance.  As  a  matter  of  fact,  plaintiff  already 
had  the  right  of  way  by  prescription.  Defendant  did  not  convey. 
Plaintiff  sues  on  the  bond.  Held,  a  penalty.  "We  have,  then, 
a  case  where  a  bond  provides  for  the  payment  of  $1,000  as 
'liquidated  damages'  for  a  breach,  and  the  evidence  shows  that 
the  breach  could  cause  but  nominal  damages. ' '  *^ 

16.  Plaintiff,  an  employee  of  defendant,  agreed  that,  in  the 
event  of  her  quitting  the  employment,  she  would  give  two  weeks* 

40— Keeble  v,  Keeble,  (1888)  85  Wash.  229,  124  Pac.  369.    This  case 

Ala.  552,  5  So.  149.  is  unsound. 

41— May     v.     Crawford,     (1898)  43— Dryer  v.  Kistler,  (1912)  118 

142  Mo.  390,  44  S.  W.  260.  Minn.  112,  136  N.  W.  750. 

42— Barrett  v.  Monro,  (1912)  69 


LIQUIDATED  DAMAGES  109 

notice  of  her  intention  to  do  so,  and  that,  if  she  should  fail  to 
do  so,  the  sum  of  $10  was  agreed  upon  as  liquidated  damages 
to  be  paid  to  defendant.  Her  earnings  were  50  cents  per  day. 
Her  work  was  in  a  necessary  department  of  a  highly  organized 
cotton  mill,  so  that  some  loss  would  be  likely  to  be  suffered  by 
defendant  if  plaintiff  should  cease  work  without  notice.  It 
would  be  impossible  to  calculate  with  any  certainty  what  such 
loss  would  be.    Held,  liquidated  damages.^^ 

17.  Plaintiff  and  defendant  entered  into  a  contract,  under 
which  it  was  agreed  that,  in  case  of  breach  of  any  one  of  a  num- 
ber of  stipulations,  a  certain  sum  should  become  due  as  liquidated 
damages.  Some  of  the  stipulations  were  in  regard  to  matters  so 
trivial  that  a  breach  of  them  could  not  have  caused  plaintiff  as 
much  damage  as  the  stipulated  amount.  Held,  that  this  was  an 
agreement  for  a  penalty,  and  not  for  liquidated  damages.^  ^ 

18.  Defendant  executed  a  bond  "in  the  full  and  just  sum  of 
$500,  liquidated  damages,"  conditioned  that  he  convey  to  plain- 
tiff, on  demand,  a  certain  3,000  feet  of  land  upon  certain  con- 
sideration. The  land  was  later  conveyed,  but  was  found  to  con- 
tain nearly  500  feet  less  than  the  amount  agreed  upon.  Plaintiff 
accepted  this  part  performance  and  sued  for  the  $500  on  the 
bond.  Held,  that,  as  part  performance  had  been  accepted,  the 
$500  could  not  be  assessed  as  liquidated  damages ;  and  only  the 
damages  actually  suffered  could  be  assessed.^^ 

19.  The  Sun  rented  plaintiff's  yacht  for  use  as  a  dispatch  boat 
in  the  Spanish-American  war,  agreeing  to  return  it  in  good  con- 
dition. The  value  of  the  yacht  was  agreed  to  be  $75,000,  The 
yacht  was  wrecked.  The  full  agreed  value  may  be  recovered  as 
liquidated  damages.^'' 

20.  **The  defendant  covenanted  never  to  practice  his  pro- 

44 — Tennessee  Mfg.  Co.  v.  James,  45 — Geo.    W.    Muller   Bank   Fix- 

(1892)  91  Tenn.  154,  18  S.  W.  262,  ture  Co.  v.  Georgia  By.  &  Electric 

15  L.  E.  A.  211,  30  Am.  St.  Rep.  Co.,  (1916)    145  Ga.  484,  89  S.  E. 

865.     But  an  agreement  to  forfeit  615. 

all  wages  due  at  the  time  of  the  46 — Shute   v.   Taylor,    (1842)    46 

breach    of    a    contract    of    employ-  Mass.  (5  Mete.)  61. 

ment,   is   for   a  penalty.     Shrimpf  47 — Sun    Printing    &    Publishing 

V.  Tennessee  Mfg.   Co.,   (1887)    86  Association   v.   Moore,    (1902)    183 

Tenn.  219,  6  S.  W.   131;  Richard-  U.  S.  642,  46  L.   ed.  366,  22  Sup. 

son    V.   Woehler,    (1872)    26   Mich.  Ct.  240. 
90. 


110  LAW  OF  DAMAGES 

fession  in  Gloucester  so  long  as  the  plaintiff  should  be  in  practice 
there,  provided,  however,  that  he  should  have  the  right  to  do  so 
at  any  time  after  five  years  by  paying  the  plaintiff  $2,000,  'but 
not  otherwise. '  This  sum  of  $2,000  was  not  liquidated  damages ; 
still  less  was  it  a  penalty.  It  was  not  a  sum  to  be  paid  in  ease 
the  defendant  broke  his  contract  and  did  what  he  had  agreed 
not  to  do.  It  was  a  price  fixed  for  what  the  contract  permitted 
him  to  do  if  he  paid.'^    This  was  an  alternative  contract.*^ 

21.  A,  a  physician  who  had  been  suffering  from  a  sore  on  his 
face,  contracted  with  B,  a  specialist  in  certain  diseases,  that 
he  would,  in  the  event  that  B  cured  him,  either  give  B  a  certificate 
of  his  skill  and  proficiency  as  a  specialist  in  the  treatment  of  the 
trouble  from  which  A  had  suffered,  or  pay  him  $5,000  in  cash. 
Held,  that  this  is  not  an  agreement  for  a  penalty,  but  that  it  is 
a  mere  alternative  agreement.*^ 

48 — Smith   v.   Bergenren,    (1891)  49 — Burgoon  v.  Johnston,  (1899) 

153   Mass.   236,   26   N.   E.    690,   10       194  Pa.  St.  61,  45  Atl.  65. 
L.  B.  A.  768. 


CHAPTER  X 
Nominal  Damages 

42.  In  General. — Nominal  damages  may  be  given  for 
an  invasion  of  a  legal  right,  whether  by  breach  of  con- 
tract ^  or  by  tort,^  where  resulting  damage  is  trivial,^ 
inappreciable,^  or  wholly  absent.^  Even  where  defend- 
ant's wrong  results  in  a  net  benefit  to  plaintiff,  there  is  a 
right  to  nominal  damages.®  In  any  case  in  which  there 
is  a  mere  technical  right  of  action,  no  more  than  nominal 
damages  may  be  awarded.^  Some  very  important  ac- 
tions are  brought  purely  for  the  purpose  of  establishing 
a  right  or  of  preventing  a  trespasser  from  continuing  a 
trespass,  harmless  in  itself,  but  a  possible  basis  of  an 
easement  dominating  plaintiff's  property.  In  such  cases, 
nominal  damages  are  assessed.^ 

Such  damages  are  also  awarded  where  there  has  been 

1— Tufts  V.  Bennett,  (1895)   163  6— Jewett  v,  Whitney,  (1857)  43 

Mass.  398,  40  N,  E.   172.  Me.     242;     Murphy     v.    Fondulac, 

2— Foster    v.    Elliott,    (1871)    33  (1868)   23  Wis.  365. 

la.  216;  Hooten  v.  Barnard,  (1884)  7— Haven    v.    Beidler   Mfg.    Co., 

137  Mass.  36.  (1879)  40  Mich.  286.     Second  Con- 

3 — Southern  Ry.  Co.  v.  Cartledge,  gregational     Society     v.     Howard, 

(Ga.    App.    1912)    73    S.    B.    703;  (1834)    33    Mass.    (16   Pick.)    206, 

White    V.   Stanbro,    (1874)    73    111.  holds  that  where  a  grantor  wrong- 

575;    Bartolini    v.  Grays    Harbor,  fully  takes  a  deed  from  grantee's 

etc.,  Co.,  (1915)  88  Wash.  341,  153  possession,  he  is  liable  in  trespass 

Pac.  4.  for  nominal  damages  only,  as  the 

4 — Cory  v.  Silcox,  (1854)  6  Ind.  trespass  did  not  deprive  the  grantee 

39.  of    title    to    the    land.      See    also 

5 — Slingerland    v.    International  Frothingham  v.  Everton,  (1841)  12 

Contracting  Co.,   (1901)    169  N.  Y.  N.  H.  239. 

60,  61  N.  E.  995,  56  L.  R.  A.  494.  8— Peck    v.    Clark,     (1886)     142 

See  also  opinion  of  Holt,  C.  J.,  in  Mass.  436,  8  N.  E.  335. 
Ashby    v.    White,     (1703)     2     Ld. 
Raym.  938,  92  Eng.  Repr.  126. 

Ill 


112  LAW  OF  DAMAGES 

an  invasion  of  a  legal  right,  resulting  in  damage  of  which 
the  amount  is  either  incapable  of  proof  or  has  not  been 
proved  on  the  trial.  Where  damages  sought  to  be  recov- 
ered are  only  speculative  and  uncertain,  no  more  than 
nominal  damages  can  be  awarded.''  The  rules  of  cer- 
tainty, elsewhere  stated,^"  preclude  the  recovery  of  com- 
pensatory damages  in  such  cases.  Mere  inability  of 
plaintiff  to  prove  the  exact  amount  of  his  damage,  will 
not,  however,  limit  his  recover}-  to  nominal  damages.^  ^ 
It  sometimes  happens,  where  the  damages  claimed  are 
for  a  pecuniary  loss,  that,  through  an  oversight  of  plain- 
tiff's attorney,  or  otherwise,  there  is  a  total  failure  of 
the  plaintiff  to  prove  damage  or  the  amount  thereof, 
even  where  he  has  abundantly  proved  an  invasion  of  his 
legal  rights.  In  such  a  case,  obviously,  the  court  cannot 
permit  the  jury  to  speculate  upon  the  fact  of  damage  or 
the  extent  of  it  and  to  render  a  verdict  for  substantial 
damages,  the  amount  being  the  result  of  wild  guesswork ; 
so  the  court  must  instruct  the  jury  to  find  a  verdict  for 
nominal  damages  only;  and,  in  the  event  of  a  finding  of 
substantial  damages,  the  verdict  must  be  set  aside. 
**  Where  the  loss  is  pecuniary  and  is  present  and  actual 
and  can  be  measured,  but  no  evidence  is  given  showing  its 
extent,  or  from  which  it  can  be  inferred,  the  jury  can 
allow  nominal  damages  only."  ^^ 

43.  Importajice  of  the  Question  Whether  Dama-ge  Is 
the  Gist  of  the  Action. — In  determining  whether  nominal 
damages  may  be  awarded  in  the  total  absence  of  damage, 

9— Chamberlain  v.  Parker,  (1871)  v.   Davis,   (1889)    117  Ind.  307,  20 

45  N.  Y.  569.  N.  E.  159;  Stevens  v.  Yale,  (1897) 

10— See  Chapter  VI.  113  Mich.  680,  72  N.  W.  5;   Peek 

11 — Jenkins  v.  Pennsylvania   R.  v.  Northern  Pacific  Ry.  Co.,  (1915) 

Co.,   (1902)    67  N.  J.  Law  331,  51  51  Mont.  295,  152  Pac.  421;  Cham- 

Atl.  704,  57  L.  R.  A.  309.  berlain  v.  Parker,  (1871)  45  N.  Y. 

12 — ^Leeds  v.   Metropolitan   Gas-  569;    Kies   v,   Binghamton   R.   Co., 

light  Co.,  (1882)   90  N.  Y.  26.  (1917)  163  N.  Y.  Supp.  736. 

See  also:    State  ex  rel.  Lowery 


NOMINAL  DAMAGES  113 

one  must  always  ascertain  within  what  class  the  case 
falls.  If  the  wrong  done  is  such  as  to  be  actionable  only 
if  damage  is  done, — or,  to  state  it  another  way,  if  damage 
is  the  gist  of  the  action, — of  course  not  even  nominal  dam- 
ages can  be  awarded  unless  some  actual  damage  is 
sho^^^l.  Therefore,  there  is,  properly  speaking,  no  such 
thing  as  nominal  damages  in  these  cases.  If  damage  in 
such  a  case  is  trivial,  it  is  properly  the  basis  of  small 
compensatory  damages,  although  the  difference  between 
the  amount  of  such  damages  and  nominal  damages  is,  in 
some  cases,  either  nothing  or  so  small  as  to  cause  courts 
occasionally  to  treat  them  as  nominal  damages.  On  the 
other  hand,  there  are  many  wrongs  that  are  actionable 
per  se;  that  is,  they  are  actionable  even  if  no  damage  is 
done.  Such  are  assault,  batterj^  slander  and  libel  (if 
the  words  used  are  actionable  per  se),  seduction,  false 
imprisonment,  trespass  to  personalty  or  realty,  and 
breach  of  contract.  In  such  cases,  even  if  no  actual  dam- 
age is  proved,  nominal  damages  may  be  recovered. 

44.  Nominal  Damages  and  Small  Damages. ^^ — Very 
small  damages  for  an  injury  that  is  trivial  but  actual, 
are  often  treated  as  a  kind  of  nominal  damages ;  ^*  but  a 
distinction  between  small  damages  and  nominal  damages 
is  logical  and  proper.  Such  a  distinction  is  stated  in  a 
Connecticut  case,  the  court  saying:  *' Small  damages, 
however,  and  nominal  damages,  do  not  mean  the  same 
thing.  Where  there  is  a  real  right  involved,  the  dam- 
ages, even  if  very  small,  are  substantial  and  not 
nominal."  ^^ 

13— See    article    by    the    writer,  18    Johns.    (N.    Y.)    129,    6    N.    Y. 

"Are    Small    Compensatory    Dam-  Com.  Law  532. 

ages   Merely   Nominal?"    51    Am.  15 — Chapin    v.    Babcock,    (1896) 

Law    Rev.    37,    and    cases    there  67  Conn.  255,  34  Atl.  1039.     See  4 

cited.  Sedg.  on  Dam.  (9th  ed.)  165,  citing 

14— White  V.  Stanbro,  (1874)  73  Tri-State  T.   &   T.   Co.  v.   Cosgrif, 

111.  575;  Cady  v.  Fairchild,  (1820)  (1909)   19  N.  Dak.  771,  124  N.  W. 
Bauer  Dam. — 8 


114 


LAW  OF  DAMAGES 


45.  Where  Plaintiff's  Case  Is  so  Small  as  Not  to  Justify 
even  Nominal  Damages. — Some  cases  have  arisen  in 
which  the  encroachment  upon  the  plaintiff's  right  has 
been  so  trivial  and  the  resulting  damage  so  very  small, 
that  the  court  has  ruled  that  not  even  nominal  damages 
are  recoverable,  following  the  well  known  maxim,  ''de 
minimis  non  curat  lex."  *® 


46.  Plaintiff's  Right  to  a  New  Trial. — A  court  will  not 
remand  a  case  for  a  new  trial,  where  the  sole  error  is  the 
failure  to  award  nominal  damages,  if  a  judgment  for 
them  would  not  have  carried  costs.^'^  ** Unless  some  sub- 
stantial right  beyond  damages  is  involved,  the  court  will 
not  reverse  a  judgment  against  the  plaintiff  merely  for 
the  purpose  of  enabling  him  to  obtain  nominal  damages, 
when  it  is  quite  clear  from  the  case  presented  that  he 
would  be  entitled  to  no  more."  ^^    Where  the  recovery 


75,  26  L.  E.  A.  (N.  S.)  1171.  See 
alsa  Wartman  v.  Swindell,  (1892) 
54  N.  J.  Law  589,  25  Atl.  356,  18 
L,  R.  A.  44;  where  the  court  says: 
"I  am  not  prepared  to  say  that  a 
verdict  for  substantial  damages 
would  not  have  been  justifiable," 
although  the  evidence  seemed  to 
indicate  very  small  damage. 

Small  amount  paid  for  a  sleeping- 
car  ticket,  of  which  amount  pas- 
senger was  entitled  to  a  return 
upon  his  justifiable  exclusion  from 
the  car,  was  held  to  be  substantial 
damages,  as  contradistinguished 
from  nominal  damages. — Pullman 
Car  Co.  v.  Krauss,  (1906)  145  Ala. 
395,  40  So.  398,  4  L.  R.  A.  (N.  S.) 
103,  8  Ann.  Cas.  218. 

16— Paul  v.  Slason,  (1850)  22 
Vt.  231,  54  Am.  Dec.  75.  The  doc- 
trine in  Paul  V.  Slason  seems  ques- 
tionable, there  being  much  room 
for  argument  that,  there  being  a 
trespass,  and  damage  not  being  the 


gist  of  trespass,  at  lea&t  nominal 
damages  must  be  assessed.  The 
law  is  well  stated  in  Wartman  v. 
Swindell,   supra. 

17 — Blackburn  v.  Alabama,  etc., 
R.  Co.,  (1904)  143  Ala.  346,  39 
So.  345,  5  Ann.  Cas.  223;  Haven 
V.  Beidler  Mfg.  Ca.,  (1879)  40 
Mich.  286. 

See  note  on  "Failure  to  Give 
Nominal  Damages  as  Reversible 
Error,"  5  Ann.  Cas.  225. 

18 — Rambaut  v.  Irving  National 
Bank,  (1899)  42  N.  Y.  App.  Div. 
143,  58  N.  Y.  Supp.  1056,  citing 
Stephens  v.  Wider,  (1865)  32  N.  Y. 
351.  See  also  Cady  v.  Fairchild, 
(1820)  18  Johns.  (N.  Y.)  129,  6 
N.  Y.  Com.  Law  532. 

An  interesting  corollary  ta  the 
general  rule  is  presented  in  Kramer 
v.  Perkins,  (1907)  102  Minn.  455, 
113  N.  W.  1062,  15  L.  R.  A.  (N. 
S.)  1141. 


NOMINAL  DAMAGES  115 

of  nominal  damages  would  enable  the  plaintiff  to  get 
costs,  there  is  a  conflict  of  authority  as  to  whether  a  re- 
versal should  be  granted  plaintiff  in  order  that  he  may 
have  costs. ^*  In  ''hard  actions,"  a  new  trial  will  not  be 
granted  for  a  mere  failure  to  award  nominal  damages, 
even  where  the  assessment  of  nominal  damages  would 
have  carried  costs. ^°  If  the  failure  of  the  jury  to  assess 
nominal  damages  has  deprived  plaintiff  of  a  substantial 
or  permanent  right,  he  has  a  right  to  a  reversal.^^ 

CASE  ILLUSTRATIONS 

1.  The  plaintiff  held  a  pew  in  a  meeting-house,  which  was  in 
such  a  ruinous  condition  that  it  could  not  be  used  as  a  house  of 
worship.  The  defendant  tore  up  and  destroyed  the  pew,  together 
with  other  pews.  The  plaintiff  can  get  nominal  damages  only,  as 
he  had  only  a  right  to  occupy  his  pew  during  public  worship,  and 
the  facts  showed  that  there  was  no  such  worship  in  the  meeting- 
house.22 

2.  A  collecting  agent  failed  to  return  to  his  principal  a  note 
of  which  the  maker  was  insolvent.  The  agent  is  liable  to  the 
principal  in  nominal  damages  only .23 

3.  A  party  was  deprived  of  the  use  of  gas.    It  appeared  that 

19 — East  Moline  Co.  v.  Weir  fender  in  the  shape  of  damages. 
Plow  Co.,  (1899)  95  Fed.  250,  37  To  this  belong  most  actions  aris- 
C.  C.  A.  62;  Hickey  v.  Baird,  ing  ex  delicto.  Trespass,  slander, 
(1860)  9  Mich.  32;  Stevens  v.  Yale,  libel,  seduction,  malicious  prosecu- 
(1897)  113  Mich.  680,  72  N.  W.  tion,  criminal  conversation,  deceit, 
5;  hold  that  where  nominal  dam-  gross  negligence,  actions  upon  the 
ages  should  have  been  awarded  and  statute,  or  qui  tam  actions,  prose- 
would  have  carried  costs,  judgment  cuted  by  informers,  and  penal  ae- 
for  defendant  is  reversible  error.  tions,  prosecuted  by  special  bodies, 

20 — For    a     discussion     of    this  or  the  public  at  large,  are  ranged 

point,   see  Jones   v.   King,    (1873)  under    this    head." — 1    Graham    & 

33  Wis.  422.  Waterman  on  New  Trials,  503  (ch. 

"Hard    actions    strictly    include  14),  quoted  in  Jones  v.  King,  supra, 

only  civil  proceedings,  involving  in  21 — Merrill  v.  Dibble,  (1882)   12 

their    nature    some    peculiar    hard-  HI.  App.  85. 

ship,   arising   from   the    odium    at-  22 — Howe  v.  Stevens,  (1875)  47 

tached   to   the   alleged   offense,   or  Vt.  262. 

the    severity    of    the    punishment  23 — Brumble  v.  Brown,  (1875)  73 

which  the  law  inflicts  on   the  of-  N.  Car.  476. 


116  LAW  OF  DAMAGES 

the  aggrieved  party  used  lamps  and  lanterns  as  a  substitute, 
which  were  cheaper  than  gas.  The  gas  company,  who  had  pre- 
vented the  use  of  the  gas,  was  not  liable  for  more  than  nominal 
damages,  in  the  absence  of  proof  of  damage.^^ 

4.  The  defendant's  clerk  fraudulently  sold  very  cheap  and 
inferior  cigars  in  boxes  bearing  the  plaintiff's  trademark,  in 
order  to  injure  the  plaintiff  and  the  reputation  of  the  plaintiff's 
cigars.  No  evidence  was  given  as  to  the  amount  of  damage,  and 
accurate  proof  on  the  point  was  impossible.  The  plaintiff  can 
recover  at  least  nominal  dameiges,  as  he  has  suffered  an  infrac- 
tion of  a  legal  right.^^ 

5.  In  an  action  for  damage  caused  by  the  defendants  to  plain- 
tiff's concrete  mixing  machine,  proof  was  made  of  the  market 
value  of  the  machine  at  the  time  it  was  taken  by  defendants, 
'but  such  value  included  parts  not  taken.  No  evidence  was  given 
as  to  the  value  of  such  parts.  Evidence  was  also  given  as  to  the 
market  value  of  the  machine  at  the  time  of  its  return.  But  no 
proof  was  made  of  its  market  value  at  the  time  of  the  taking, 
without  the  parts  not  taken,  and  no  facts  were  given  in  evidence 
from  which  such  value  could  be  computed.  Held,  that  only 
nominal  damages  could  be  awarded.^^ 

6.  The  plaintiff  sued  to  recover  damages  for  breach  of  a  con- 
tract under  which  the  defendants  agreed  to  employ  her  for  three 
years  as  an  actress,  and  to  pay  her  one  half  of  the  general  profits 
of  the  business,  in  addition  to  certain  expenses.  The  plaintiff", 
even  in  the  absence  of  proof  of  quantum  of  damages,  or  even 
if  performance  would  have  been  a  positive  injury  to  her,  has  a 
right  to  nominal  damages,  but  a  judgment  for  the  defendant  on 
the  merits  will  not  be  disturbed  in  order  to  have  such  damages 
assessed.2'' 

24 — Detroit  Gas  Co.  v.  Moreton  26 — Northwestern  Equipment  Co. 

Truck   &  Storage   Co.,    (1897)    111  v,  Sofe,   (1916)   91  Wash.  118,  157 

Mich.  401,  69  N.  W.  659.  Pac.  459. 

25 — Lampert   v.   Judge   &   Dolph  27— Ellsler  v.  Brooks,  (1886)  54 

Drug  Co.,  (1911)  238  Mo.  409,  141  N.  Y.  Super.  Ct,   (22  Jones  &  S.) 

S.   W.   1095,  37  L.   R.    A.    (N.   S.)  73. 
533,  Ann.  Cas.  1913  A  351. 


CHAPTER  XI 

Exemplary  Damages 

47.  In  General. — Exemplary,  punitive,  punitory,  or  vin- 
dictive damages  are  damages  over  and  above  compensa- 
tion, assessed  for  the  purpose  of  punishing  the  defend- 
ant wrongdoer,  where  he  is  guilty  of  actual  malice,  de- 
liberate violence,  oppression,  wantonness,  recklessness, 
or  fraud.^  Such  damages,  now  allowed  in  most  jurisdic- 
tions, are  assessed  only  in  cases  of  tort  and  breach  of 
promise  to  marry.^    It  seems  that  the  doctrine  that  a 


1 — ^All  these  elements  are  re- 
garded as  being  or  implying  malice 
in  law.  See  section  on  "Malice," 
post,  p.  122.  "In  this  court  the 
doctrine  is  well  settled  that  in  ac- 
tions of  tort  the  jury,  in  addition 
to  the  sum  awarded  by  way  of  com- 
pensation for  the  plaintiff's  injury, 
may  award  exemplary,  punitive, 
or  vindictive  damages,  sometimes 
called  'smart  money,'  if  the  de- 
fendant has  acted  wantonly,  or 
oppressively  or  with  such  malice 
as  implies  a  spirit  of  mischief  or 
criminal  indifference  to  civil  obli- 
gations." Lake  Shore  &  M.  S,  Ey. 
Co.  v.  Prentice,  (1893)  147  U.  S. 
101,  13  Sup.  Ct.  261,  37  L.  ed.  97. 

2 — For  the  allcrwanee  of  exem- 
plary damages  for  breach  of  prom- 
ise to  marry,  see  Chellis  v.  Chap- 
man. (1891)  125  N.  Y.  214,  26  N. 
E.  308,  11  L.  R.  A.  784.  Tortious 
elements  involved  in  such  a  case 
cause  the  assessment  of  exemplary 
damages.    For  breach  of  duty  of  a 


carrier,  accompanied  by  insult,  in- 
dignity, or  gross  negligence,  sueh 
damages  are  allowed  in  many  in- 
stances; but  most  of  such  cases 
can  be  sustained  on  the  ground  that 
a  tortiorus  wrong  has  been  inflicted, 
in  addition  to,  or  independently  of, 
the  breach  of  contract.  Besides, 
the  breach  of  a  common  carrier's 
contract  may  at  the  same  time  be 
a  breach  of  a  commooi  law  duty 
and  therefore  a  tort.  Alabama, 
etc.,  R.  Co.  V.  Sellers,  (1890)  93 
Ala.  9,  9  So.  375,  30  Am.  St.  Rep. 
17;  Pittsburgh,  etc.,  R.  Co.  v.  Lyon, 
(1889)  123  Pa.  140,  16  Atl.  607,  2 
L.  R.  A.  489,  10  Am.  St.  Rep.  517; 
Milhouse  v.  Southern  Ry.,  (1905) 
72  S.  Car.  442,  52  S.  E.  41,  110  Am. 
St.  Rep.  620.  One  court  has,  how- 
ever, allowed  exemplary  damages 
expressly  on  the  ground  of  a  breach 
of  the  carrier's  contract.  Knox- 
ville  Traction  Co,  v.  Lane,  (18^9") 
103  Tenn.  376,  53  S.  W.  557,  46 
L.  R.  A.  549. 


117 


118  LAW  OF  DAMAGES 

jury  may  lawfully  award  exemplary  damages  grew  out 
of  the  extreme  reluctance  of  early  courts  to  interfere 
with  the  verdicts  of  juries  in  tort  cases,  when  urged  to 
set  aside  such  verdicts  on  the  ground  that  the  damages 
awarded  were  excessive.^  The  express  rule  that  dam- 
ages may  be  awarded  for  punishment  and  example  is  a 
distinct  anomaly.  The  early  common  law  theory,  how- 
ever far  this  may  have  been  from  fact  in  the  practice  of 
juries,  probably  was  that  damages  were  entirely  compen- 
satory. That  damages  are  for  compensation  only,  is  the 
frequently  quoted  theory  of  Mr.  Greenleaf.*  Sedgwick, 
however,  favors  the  doctrine  of  exemplary  damages ;  ** 
and  Sutherland  seems  to  uphold  the  doctrine  on  the 
ground  that  a  malicious  tort  may  cause  more  damage 
than  a  tort  without  malice,  which  makes  exemplary  dam- 
ages, in  theory,  merely  compensatory.^  The  strongest 
objection  to  the  doctrine  of  exemplary  damages,  inde- 
pendent of  statute,  is  that  it  has  no  positive  basis  in  the 
early  common  law ;  but,  however  sound  this  objection  is, 
so  many  cases  within  the  past  century  and  a  half  have 
recognized  the  rule,  that,  in  most  states,  dissent  from  it 
is  of  only  academic  interest. 

It  has  often  been  argued  that  the  assessment  of  exem- 
plary damages  is  objectionable,  as  the  defendant  may 
thus  be  punished  without  the  benefit  of  the  rules  of  the 
substantive  criminal  law  and  of  evidence  and  procedure 
applicable  to  a  criminal  trial,  guaranteed  to  a  criminal 
defendant  by  statutory  and  constitutional  provisions. 
In  support  of  this  contention,  it  is  said  that,  by  the 
assessment  of  damages  for  punishment,  a  defendant  may 
be  practically  fined  without  any  limit  such  as  is  usually 
provided  by  criminal  statutes ;  and  that  he  may  thus  be 
punished  without  either  indictment  or  information,  with- 
out the  opportunity  to  meet  witnesses  against  him  face 

3— See  Chapter  Vm,  "Excessive         4— Grepnleaf.  Ev.  §  253. 
and    Inadequate    Damages,"    and  5 — 1  Sedg.  Dam.  (7th  ed.),  P-  53. 

cases  there  cited.  6 — Suth.    Dam.    §  390. 


EXEMPLARY  DAMAGES  119 

to  face,  and  without  proof  of  his  guilt  beyond  a  reason- 
able doubt ;  and  all  this  notwithstanding  the  fact  that  he 
is  liable  criminally  or  has  actually  been  punished  crimi- 
nally for  the  same  offense.  However  valid  on  ethical 
grounds  these  objections  may  be,  according  to  the  weight 
of  legal  authority,  they  are  disposed  of  by  the  principle 
that  an  act  which  is  both  a  tort  and  a  crime  is,  in  theory, 
two  offenses,  one  cognizable  in  a  civil  and  the  other  in  a 
criminal  proceeding.  Yet  some  courts,  while  recogniz- 
ing the  general  doctrine  of  exemplary  damages,  refuse 
to  assess  such  damages  against  a  defendant  who  has  been 
or  may  be  punished  criminally  for  the  same  act  J 

It  has  also  been  urged  that  it  is  unjust  that,  in  order  to 
punish  a  defendant,  his  money  should  be  taken  from  him 
and  given  to  the  plaintiff ;  *  but  most  courts  and  public 
opinion,  as  expressed  in  statutes  in  some  states,  have 
taken  the  view  that  the  assessment  of  exemplary  dam- 
ages, in  appropriate  cases,  is  eminently  just. 

In  most  jurisdictions,  none  of  these  objections  has 
prevented  the  operation  of  the  general  rule.  Whether 
the  principle  of  exemplary  damages  is  sound  or  not,  it  is 
usually  followed.  In  cases  in  which  damages  are  very 
uncertain,  for  instance,  those  in  which  the  physical  or 
mental  suffering  of  the  plaintiff  is  an  element,  it  is 
doubtful  whether  the  practical  power  of  the  jury  or  the 
size  of  verdicts  is  increased  by  the  adoption  of  the  rule 
of  exemplary  damages;  for,  in  such  cases,  a  jury  may 
^ive  a  very  large  verdict,  with  little  probability  that  the 
court  will  set  it  aside  as  excessive.^ 

7 — See   cases   cited   in   note    14,  Boyer  v.  Barr,  (1878)   8  Neb.  68, 

this  chapter.  30  Am.  Rep.  814. 

8 — For  a  presentation  of  various  9 — See    Chapter    VIII,    "Exces- 

objections  to  the  doctrine,  see  the  sive    and    Inadequate    Damages." 

■famous    case,    Spokaoe    Truck    &  But    verdicts   for    even    exemplary 

l)ray  Co.  v.  Hoefer,  (1891)  2  Wash.  damages    may    be    reduced    or    set 

45,  25  Pac.  1072,  11  L.  E.  A.  689,  aside  as  excessive;  see  article  by 

26    Am.    St.    Rep.    842.      See    also  writer,      "Excessive      Exemplary 


120 


LAW  OF  DAMAGES 


The  general  doctrine  that  damages  exceeding  compen- 
sation may  be  awarded  for  the  purpose  of  punishment 
and  example,  in  cases  of  malicious  torts,  has  the  support 
of  the  decided  weight  of  authority.^^  A  few  supreme 
courts  have  denied  the  doctrine  as  a  rule  of  the  common 
law;"  some  have  so  defined  exemplary  damages  as  to 
make  them  purely  compensator^^  and  therefore  not  ex- 
emplary at  all ;  and  some  have  placed  important  restric- 
tions upon  the  operation  of  the  general  rule.^^  The  prin- 
ciple, having  no  positive  support  in  the  early  common 
law  and  no  clear  demarcation  in  the  earliest  cases  affirm- 
ing it,  is  far  from  constituting  a  uniform  rule  in  the 
various  jurisdictions,  having  divers  limitations  placed 
upon  it  by  different  courts.^^  Some  of  these  limitations 
will  be  noticed  in  the  paragraphs  following. 


Damages — The  Relation  of  Exem- 
plary to  Compensatory  Damages," 
52  American  Law  Eeview  11. 

10— Huckle  V.  Money,  (1763)  2 
Wils.  205,  95  Eng.  Repr.  768;  Merest 
V.  Harvey,  (1814)  5  Taunt.  442, 
128  Eng.  Repr.  761;  Sears  v.  Lyons, 
(1818)  2  Starkie  317,  8  E.  R.  C. 
363;  Day  v.  Woodworth,  (1851)  13 
How.  (U.  S.)  363,  14  L.  ed.  181; 
Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Prentice,  (1893)  147  U.  S.  101,  13 
Sup.  Ct.  261,  37  L.  ed.  97;  Goddard 
V.  Grand  Trunk  Railway,  (1869) 
57  Me.  202,  2  Am.  Rep.  39;  Wort 
V.  Jenkins,  (1817)  14  Johns.  (N. 
Y.)  352;  Genay  v.  Norris,  (1784) 
1  Bay  (S.  Car.)   6. 

Some  states  have  exemplary 
damages  by  statute;  e.  g.  Colorado 
and  Georgia. 

11 — Greeley,  etc.,  R.  Co.  v.  Yea- 
ger,  (1888)  11  Col.  345,  18  Pac. 
211;  Hewlett  v.  Tuttle,  (1890)  15 
Col.  454,  24  Pac.  921;  Bee  Publish- 
ing Co.  V.  World  Publishing  Co., 
(1900)  59  Neb.  713,  82  N.  W.  28; 


Spokane  &  Dray  Co.  v.  Hoefer, 
(1891)  2  Wash.  45,  25  Pac.  1072, 
11  L.  R.  A.  689,  26  Am.  St.  Rep. 
842;  Corcoran  v.  Postal  Telegraph, 
etc.,  Co.,  (1914)  80  Wash.  570,  142 
Pac.  29. 

12— Smith  V.  Holcomb,  (1868)  99 
Mass.  552;  Ellis  v.  Brockton  Co., 
(1908)  198  Mass.  538,  84  N.  E. 
1018;  Detroit  Daily  Post  Co.  v. 
McArthur,  (1868)  16  Mich.  447; 
Welch  V.  Ware,  (1875)  32  Mich. 
84;  Beck  v.  Thompson,  (1888)  31 
W.  Va.  459,  7  S.  E.  447,  13  Am.  St. 
Rep.  870;  holding  that  exemplary 
damages  can  be  assessed  only  as 
compensation  for  the  aggravation 
of  the  injury  caused  by  the  de- 
fendant 's  malice.  See  also  Maisen- 
backer  v.  Society  Concordia,  (1899) 
71  Conn.  369,  42  Atl.  67,  71  Am.  St. 
Rep.  213;  holding  that  exemplary 
damages  cannot  exceed  the  plain- 
tiff's expenses  of  litigation,  less  his 
taxable  costs. 

13 — See  article  by  the  writer,  82 
Central  Law  Journal  262. 


EXEMPLARY  DAMAGES 


121 


48.  For  Acts  Punishable  Criminally. — Some  courts  hold 
that  exemplary  damages  cannot  be  awarded  in  a  tort 
case  based  upon  facts  which  make  the  defendant  punish- 
able criminally. ^^  In  Pennsylvania,  it  is  held  that,  if 
defendant  has  been  convicted  of  a  criminal  offense  grow- 
ing out  of  the  same  acts,  the  record  showing  conviction 
and  sentence  may  be  offered  in  evidence  and  considered 
by  the  jury  in  mitigation  of  exemplary  damages.^®  The 
weight  of  authority  is  that  criminal  liability  for  the  same 
act  does  not  prevent  the  assessment  of  exemplary  dam- 
ages,^" and  that  the  fact  of  the  infliction  of  punishment 
in  a  criminal  proceeding  is  not  admissible  in  evidence  to 
mitigate  damages. ^'^ 

49.  Predicated  Upon  Actual  Damage? — ^Exemplary 
damages  are  not  generally  held  recoverable  unless  there 
is  proof  of  actual  damage.^^    What  constitutes  actual 


14— Taber  v.  Hutson,  (1854)  5 
Ind.  322,  61  Am.  Dec.  96;  Wabash 
Printing  &  Publishing  Co.  v.  Crum- 
rine,  (1889)  123  Ind.  89,  21  N.  E. 
904;  Anderson  v.  Evansville  Brew- 
ing Ass'n,  (Ind.  App.  1912)  97  N. 
E.  445;  Indianapolis  Bleaching  Co. 
V.  McMillan,  (Ind.  1916)  113  N.  E. 
1019,  83  Cent.  Law  J.  427;  Patter- 
son V.  New  Orleans,  etc.,  Co., 
(1903)  110  La.  797,  34  So.  782; 
Austin  V.  Wilson,  (1849)  4  Cush. 
(Mass.)  273,  50  Am.  Dec.  766; 
Fay  V.  Parker,  (1873)  53  N.  H. 
342,  16  Am.  Rep.  270. 

15— Wirsing  v.  Smith,  (1908) 
222  Pa.  8,  70  Atl.  906. 

16— Brown  v.  Evans,  (1883)  17 
Fed.  912;  aff.  109  U.  S.  180,  27  L. 
ed.  898,  3  Sup.  Ct.  83;  Smith  v. 
Bagwell,  (1882)  19  Fla.  117,  45 
Am.  Rep.  12;  Brannon  v.  Silver- 
nail,  (1876)  81  111.  434;  Hauser  v. 
Griffith,  (1897)    102  la.  215,  71  N. 


W.  223;  Barr  v.  Moore,  (1878)  87 
Pa.  385,  30  Am.  Rep.  367. 

17— Hoadley  v.  Watson,  (1873) 
45  Vt.  289,  12  Am.  Rep.  197; 
Klopfer  V,  Brormme,  (1870)  26  Wis. 
372. 

18— Freese  v.  Tripp,  (1873)  70 
111.  496  (under  a  statute  imposing 
civil  liability  upon  liquor  dealers 
for  selling  intoxicants  to  drunk- 
ards) ;  Kuhn  v.  Chicago,  etc.,  Ry. 
Co.,  (1888)  74  la.  137,  37  N.  W. 
116;  Schippel  v.  Norton,  (1888)  38 
Kan.  567,  16  Pac.  804;  Somdegard 
v.  Martin,  (1910)  83  Kan.  275,  111 
Pac.  442;  Bethea  v.  Western  Union 
Telegraph  Co.,  (1914)  97  S.  Car. 
385,  81  S.  E.  675,  Contra:  Press 
Publishing  Co.  v.  Monroe,  (1896) 
73  Fed.  196,  19  C.  C.  A.  429,  38  U. 
S.  App.  410,  51  L.  R.  A.  353;  Ala- 
bama Great  Southern  R.  Co.  v. 
Sellers,  (1890)  93  Ala.  9,  9  So.  375, 
30  Am.  St.  Rep.  17.    Where  a  ver- 


122  LAW  OF  DAMAGES 

damage  suflScient  to  form  a  basis  for  the  assessment  of 
exemplary  damages,  is  a  question  on  which  the  courts 
are  divided;  some  holding  that  ''nominal  actual"  dam- 
age is  sufficient,^^  and  others  holding  contra.^^  There  is 
some  confusion  in  the  use  of  the  term  **  nominal  dam- 
ages" in  the  cases  involving  this  point,  some  courts  seem- 
ing to  regard  nominal  damages  as  based  upon  some 
slight  damage,  and  other  courts  considering  nominal  dam- 
ages a  clear  indication  that  the  plaintiff  has  proved  only 
the  invasion  of  a  legal  right,  with  no  actual  damage.^^ 

Mental  anguish,  anxiety,  and  distress  of  mind  have 
been  held  not  to  furnish  a  sufficient  basis  for  an  allowance 
of  exemplary  damages,  where  no  physical  damage  is 
shown.22  i^  iiag  sometimes  been  held  that  exemplary 
damages  are  not  recoverable  where  the  actual  damage 
is  capable  of  accurate  pecuniary  estimation.^^ 

50.  MaJice. — Malice,  in  cases  wherein  the  assessment  of 
exemplary  damages  is   appropriate,   is   of  two   kinds: 

diet    was    for    plaintiff,    the    jury  409,    141    S.    W.    1095,    Ann.    Cas. 

finding  such  facts  as  would  have  1913  A   351,  37  L.   R.   A.    (N.   S.) 

entitled  the  plaintiff  to  actual  dam-  533;    Saunders    v.    Gilbert,    (1911) 

ages,  but  assessing  exemplary  dam-  156  N.  Car,  463,  72  S.  E.  610,  38 

ages  only,  the  error  of  failure  to  L.  B.  A.  (N.  S.)  404. 
assess  actual  damages    was  favor-  20 — Stacy  v.  Portland  Publishing 

able   to    defendant   and   therefore,  Co.,  (1878)   68  Me.  279. 
from  defendant's  standpoint,  harm-  21 — See  article  by  author,  "Are 

less  error,  though,  from  the  plain-  Small       Compensatory       Damages 

tiff's    standpoint,    the    error    was  Merely    Nominal,"    51    Am.    Law 

reversible.      Adams    v.    St.    Louis,  Rev.  37. 

etc.,  R.  Co.,   (Mo.  App.  1910)    130  22— West  v.  Western  Union  Tele- 

S.  W.  48.     In  Louisville,  etc.,  R.  graph  Co.,   (1888)   39  Kan.  93,  17 

Co.  V.  Ritchel,  (1912)  148  Ky.  701,  Pac.    807,    7    Am.    St.    Rep.    530; 

147   S.   W.  411,   Ann.   Cas.   1913  E  Ramey  v.  Western  Union  Telegraph 

517,  41  L.  R.  A.  (N.  S.)  958,  actual  Co.,   (1915)  94  Kan.  196,  146  Pac. 

damage  was  proved,  but  a  verdict  421. 

was  rendered  for  exemplary  dam-  23 — Durfee   v.   Newkirk,    (1890) 

ages  only;  yet  the  verdict  was  held  83  Mich.  522,  47  N.  W.  351;  which 

good  as  aeainst  the  defendant.  was  in  trespass  on  the  case,  but 

19 — Wilson  V.  Vaughn  (1885)  23  really  grew  out   of  a   contract   of 

Fed.    229;    Lampert    v.    Judge    &  sale.     See  also  Michaelis  v.  Mich- 

Dolph   Drug  Co.,    (1911)    238   Mo.  aelis,   (1890)   43  Minn.  123,  44  N. 


EXEIMPLARY  DAMAGES  123 

actual  malice,  which  is  malice  in  fact,  or  malice  in  the 
ordinary  sense;  and  implied  malice,  which  is  malice  in 
law,  or  that  which  the  law  regards  as  being  or  implying 
malice. 2^  ''Whatever  is  done  willfully  and  purposely,  if 
it  be  at  the  same  time  wrong  and  unlawful,  and  that 
known  to  the  party,  is  in  legal  contemplation  malicious. 
That  which  is  done  contrary  to  one's  own  conviction  of 
duty,  or  with  a  wilful  disregard  of  the  rights  of  others, 
whether  it  be  to  compass  some  lawful  end  by  unlawful 
means,  or,  in  the  language  of  the  charge,  to  do  a  wrong 
and  unlawful  act  knowing  it  to  be  such,  constitutes  legal 
malice." ^^  It  has  often  been  held  that  gross  negligence 
is  a  ground  for  the  assessment  of  exemplary  damages; 
but  it  would  probably  be  more  accurate  to  say  that  it  is 
considered  as  evidence  of  such  recklessness  and  wanton- 
ness as  will  amount  to  legal  malice,  or,  as  is  sometimes 
stated,  **the  element  of  willfulness  or  conscious  indiffer- 
ence to  consequences,  from  which  malice  may  be  in- 
ferred." 2^    *'In  order  to  warrant  the  recovery  of  puni- 

W.  1149.     Contra:  Summers  v.  Kel-  states  the  law  thus:    "Negligence, 

ler,   (1911)   152  Ma.  App.  626,  133  however  gross,  will  not  justify  a 

S.  W.  1180.  verdict    for    exemplary     damages, 

24 — See     discussion,     Sutherland  unless     the     negligent     party     is 

on    Damages^    §  394.  guilty    of    willfulness,    wantonness 

25 — Shaw,    C.    J.,    in    Willis    v.  or  conscious  indifference   to   comse- 

Noyes,    (1832)     12    Pick.    (Mass.)  quences  from  which  malice  will  be 

324;   approved  in  Lynd  v.  Picket,  inferred."    Arkansas,  etc.,  By.  Co. 

(1862)    7   Minn.    184,   Gil.    128,   82  v.  Strorude,  (1905)  77  Ark.  109,  91 

Am.  Dec.  79;  and  Anderson  v.  In-  S.  W.  18,  113  Am.  St.  Eep.  130.    If 

ternational   Harvester    Co.,    (1908)  this  means  that  there  must  always 

104  Minn.  49,  116  N.  W.   101,   16  be  proof  of  willfulness,  etc.,  in  ad- 

L.  R.  A.   (N.  S.)   440;  with  which  dition  to  proof  of  gross  negligence, 

see  L.  R.  A.  note.     See  discussions  the     proposition     seems    to    be    a 

of  malice  as  a  ground  of  exemplary  doubtful    one,    as    negligence    may 

damages,     in     Davis     v.     Hearst,  be  so  gross  as  to  raise  a  presump- 

(1911)   160  Cal.  143,  116  Pac.  530;  tion   of  legal   malice.     For  an   in- 

and  McNamara  v.  St.  Louis  Tran-  stance  of  the  assessment  of  exem- 

sit  Co.,   (1904)   182  Mo.  676,  81  S.  plary  damages   for   "wilful   negli- 

W.  880,  66  L.  R.  A.  486.  gence,"     see     Emblen    v.     Myers, 

26— St.   Louis,   etc.,   Ry.   Co.   v.  (1860)   6  Hurl.  &  N.  54,  158  Eng. 

Hall,   (1890)   53  Ark.  7,  13  S.  W.  Repr.  23. 
138.     A    case    following   this    one 


124  LAW  OF  DAMAGES 

tive  or  exemplary  damages  because  of  the  negligence  of 
the  defendant,  such  negligence  must  be  so  gross  as  to 
amount  to  wantonness,  where  no  willful  or  malicious 
acts  are  proven. "  ^^  In  a  jurisdiction  holding  the  in- 
ducing of  a  breach  of  another's  contract  to  be  a  tort,  it 
has  been  held  that  the  intention  of  the  defendant  to  pro- 
cure a  contract  with  plaintiff  for  himself,  instead  of 
plaintiff's  existing  contract,  of  which  defendant  caused 
the  breach  is  not  such  malice  as  to  sustain  an  award  of 
exemplary  damages.^^ 

Where  there  is  neither  actual  nor  legal  malice  on  the 
part  of  the  person  against  whom  the  damages  are  to  be 
assessed,  exemplary  damages  cannot  be  awarded.  So, 
where  a  wrongful  act  has  been  committed  by  mistake  or 
under  a  bona  fide  claim  of  right,^^  without  malice,  there 
is  no  ground  for  exemplary  damages.  Likewise,  only 
compensatory  damages  can  be  assessed  against  a  young 
child  ^"  or  an  insane  person,^  ^  since,  in  such  a  case,  the 
defendant  is  incapable  of  entertaining  such  malice  as  to 
make  the  assessment  of  greater  damages  proper.  If  the 
defendant  dies  before  trial,  where  the  action  survives 
against  his  representatives,  the  recovery  is  limited  to 
compensation;  ^2  which  is  on  the  ground  that  exemplary 
damages,  being  for  punishment,  cannot  properly  be  taken 

27— Atchison,    etc.,    Ey.    Co,    v.  lin  Plant  Farm  v.  Nash,  (1915)  118 

Ringle,     (1905)    71    Kan.    839,    80  Va.   98,   86   S.   E.   836;   Jopling   v. 

Pac.    43.      See   also    New   Orleans,  Bluefield    Waterworks    Co.,    (1912) 

etc.,  R.  Co.  V.  Statham,  (1869)   42  70  W.  Va.  670,  74  S.  E.  943,  39  L. 

Miss.  607,  97  Am.  Dec.  478.  R.  A.  (N.  S.)   814. 

28 — Knickerbocker    Ice     Co.     v.  30 — O'Brien    v.    Loomis,    (1890) 

Gardiner    Dairy    Co.,     (1908)     107  43  Mo.  App.  29. 

Md.  556,  69  Atl.  405,  16  L.  R.  A.  31— Mclntire    v.    Sholty,    (1887) 

(N.  S.)  746.  121  m.  660,  13  N.  E.  239,  2  Am. 

29 — Ferguson    v.    Missouri    Pac.  St.  Rep.  140;  Schriver  v.  Frawley, 

Ry.  Co.,  (Mo.  1915)  177  S.  W.  616;  (1914)  167  la.  419,  149  N.  W.  510; 

Seely  v.  Alden,  (1869)  61  Pa.  302,  Krom    v.    Schoonmaker,    (1848)    3 

100  Am.  Dee.  642;   Gwynn  v.  Cit-  Barb.  (N.  Y.)  647. 

izens  Telephone  Co.,    (1904)    69  S.  32— Morris  v.  Duncan,  (1906)  126 

Car.  434,  48  S.  E.  460,  67  L.  R.  A.  Ga.  467,  54  S.  E.  1045. 
Ill,  104  Am.  St.  Rep.  819;  Frank- 


EXEMPLARY  DAMAGES  125 

from  heirs  or  legatees,  who  cannot  be  guilty  of  malice  in 
the  perpetration  of  the  tort,  having  taken  no  part  in  it. 
The  assessment  of  exemplary  damages  in  such  a  case, 
although  not  nominally  against  heirs  or  legatees,  would, 
in  fact,  diminish  their  property  interests  in  the  estate  of 
the  deceased  and  so  would  be  unjust. 

51.  Tort  by  Defendant's  A^ent. — There  are  two  dif- 
ferent and  conflicting  principles  applied  by  different 
courts  in  the  assessment  of  exemplary  damages  against 
a  master  or  principal,  some  courts  making  the  liability 
of  the  master  or  principal  to  exemplary  damages  depend- 
ent upon  authorization  or  ratification  of  the  wrongful  act 
of  the  servant  or  agent,  and  others  making  it  dependent 
upon  the  conduct  of  the  servant  or  agent  within  the  scope 
of  his  general  authority. 

Most  courts  hold  that  the  malice  of  the  agent  is  not 
imputable  to  the  principal  and  that  therefore  a  principal 
is  not  liable  in  exemplary  damages  unless  he  expressly 
authorized  or  ratified  his  agent's  wrongful  act,  or  was 
guilty  of  gross  negligence  in  selecting  his  agent ;  ^^  al- 
though some  hold  squarely  contra.^^  ' '  Since  the  animus 
malus  must  be  shown  to  exist  in  every  case  before  an 
award  in  punitive  damages  may  be  made  against  a  de- 
fendant, since  the  evil  motive  is  the  controlling  and  essen- 

33— Davis  v.  Hearst,  (1911)   160  S.  E.  801,  7  L.  R.  A.  354;  Robinson 

Cal.    143,    116   Pac.   530;    Lightner  v.    Superior,    etc.,    Co.,    (1896)    94 

Mining    Co.    v.    Lane,    (1912)    161  Wis.  345,  68  N.  W.  961,  34  L.  R. 

Cal.  689,  120  Pac.   771;   Colvin  v.  A.  205,  59  Am.  St.  Rep.  897. 
Peck,  (1892)  62  Conn.  155,  25  Atl.  Sheriff  held  not  liable  in  exem- 

355;      Forhman      v.      Consolidated  plary    damages     for    unauthorized 

Traction  Co.,  (1899)  63  N.  J.  Law  and  unratified   act   of  his   deputy, 

391,  43  Atl.  892;   Hagan  v.  Prov-  Foley   v.   Martin,    (1904)    142   Cal. 

idence,    etc.,   R.    Co.,    (1854)    3    R.  256,  75  Pac.  842,  100  Am.  St.  Rep. 

L   88,  62   Am.   Dec.   377;   Western  123.      But    see    Hazard    v.    Israel, 

Union    Telegraph     Co.     v.    Brown,  (1808)   1  Binney  (Pa.)   240,  2  Am. 

(1882)    58   Tex.   170,  44  Am.   Rep.  Dec.  438. 

610;   Ricketts  v.   Chesapeake,  etc.,  34— Fell    v.    Northern    Pac.    R. 

R.  Co.,   (1890)   33  W.  Va.  433,  10  Co.,   (1890)   44  Fed.  248. 


126  LAW  OF  DAMAGES 

tial  factor  which  justifies  such  an  award,  it  follows  of 
necessity  that  no  principal  can  be  held  in  punitive  dam- 
ages for  the  act  of  his  agent,  unless  the  particular  act 
comes  within  the  principal's  specific  directions  or  gen- 
eral suggestions,  or  unless  the  principal  has  subsequently- 
ratified  it;  such  ratification  presupposing,  it  is  said, 
original  authorization. ' '  ^^ 

Where  a  malicious  tort  of  an  agent  is  expressly  author- 
ized by  his  principal,  exemplary  damages  may  be  as- 
sessed against  the  principal.^®  There  is  comparatively 
little  difficulty  in  determining  what  facts  show  express 
authorization  of  a  malicious  tort,  so  as  to  render  a  prin- 
cipal liable  in  exemplary  damages ;  but,  on  the  question 
what  constitutes  such  ratification  as  to  afford  a.  basis  for 
the  assessment  of  exemplary  damages  against  a  princi- 
pal, there  is  more  of  difficulty  and  hence  more  of  adjudi- 
cation. The  retention  of  the  agent  in  the  employ  of  the 
principal  after  the  principal  has  notice  of  the  tort  is 
often  held  to  be  such  a  ratification  as  to  make  the  prin- 
cipal liable  in  exemplary  damages.^'  So  it  is  held  also 
of  the  retention  of  the  fruits  of  the  agent's  tort  by  the 
principal.-''® 

Many  cases  hold  a  principal  liable  in  exemplary  dam- 
ages for  malicious  or  grossly  negligent  torts  of  an  un- 
skilful, negligent,  reckless,  or  wanton  agent  employed  by 
the  principal.^'^ 

35 — Davis  v.  Hearst,  (1911)  160  39— Henning  v.   Western   Union 

Cal.  143,  116  Pac.  530.  Telegraph  Co.,  (1890)  41  Fed.  864. 

36 — Denver  &  R.  G.  Ey.   Co.  v.  Cleghorn    v.    New    York    Central, 

Harris,    (1887)    122    U.    S.    597,    7  etc.,   Co.,    (1874)    56   N.   Y.   44,   15 

Sup.  Ct.  1286,  30  L.  ed.  1146.  Am.  Rep.  375;  holding  that  it  was 

37 — Bass    v.    Chicago    &    N.    W.  competent,  for  the  purpose   of  es- 

Ry.    Co.,    (1877)    42    Wis.    654,    24  tablishing    a    claim    to    exemplary 

Am.  Rep.  437.  damages,  to  prove  that  defendant 

38 — Kilpatrick  v.  Haley,   (1895)  railway's  servant  was  intoxicated 

66  Fed.   133,   13   C.   C.  A.  480,   27  at  the  time  of  the  accident,  that 

U.  S.  App.  752;  Goddard  v.  Grand  he  was  a  man  of  intemperate  hab- 

Trunk  Railway,  (1869)  57  Me.  202,  its,  and  that  this  latter  fact  was 

2   Am.   Rop.   39.  knov\Ti  to  the  agent  of  the  corpora- 


EXEMPLARY  DAMAGES  127 

Where  the  wantonness  of  an  agent  is  such  as  to  make 
the  agent  liable  for  his  tort,  in  exemplary  damages,  the 
principal  is  likewise  so  liable,^''  according  to  one  line  of 
cases.  So  it  has  been  held  that  an  attorney  who  seizes 
property,  knowing  or  having  reasonable  grounds  for  be- 
lieving that  it  does  not  belong  to  the  defendant  in  attach- 
ment, renders  his  client  liable  to  the  owner  in  exemplary 
damages.^^  Conversely,  it  is  held  that  no  exemplary 
damages  can  be  recovered  against  the  principal,  where 
no  such  damages  could  be  recovered  of  the  agent  if  he 
were  the  defendant.*^ 

52.  Against  Corporations. — Exemplary  damages  may 
be  allowed  against  a  private  corporation.^^  Courts,  how- 
ever, disagree  as  to  the  circumstances  under  which  such 
allowance  may  be  made.  One  case  lays  down  the  broad 
principle  that  **  whatever  rule  of  damages  would  apply 
in  a  suit  against  a  natural  person  ought  to  apply  in  a 
suit  against  a  corporation,"  stating  further:  **Any  dis- 
crimination in  that  regard  would  shock  the  public  sense 
of  impartial  justice,  and  would  be  an  unjustifiable  inno- 
vation.   The    instructions    governing   subordinate   em- 

tion  who  had  power  to  employ  and  (1892)    37   S.   Car.   377,   16  S.  E. 

discharge  him.  40,  34  Am.  St.  Eep.  758.    In  most 

40 — Malloy    v.    Bennett,    (1883)  jurisdictions,  this  reasoning  is  not 

15  Fed.  371.  regarded   as  satisfactory. 

"When      one      person      invests  41 — Jones  v.   Lamon,   (1893)   92 

another  with  authority  to  act  as  Ga.  529,  18  S.  E.  423. 

his  agent  for  a  specified  purpose,  42 — Townsend     v.     New     York 

all  of  the  acts  done  by  the  agent  Central,  etc.,  E.  Co.,  (1874)  56  N. 

in  pursuance,  or  within  the  scope,  Y.  295,  15  Am.  Eep.  419. 

of  his  agency,  are,  and  should  be,  43 — Lake    Shore    &    M.    S.    Ry. 

regarded  as  really  the  acts  of  the  Co.    v.    Prentice,    (1893)     147    U. 

principal.    If,  therefore,  the  agent,  S.  101,  13  Sup,  Ct.  261,  37  L.  ed. 

in  doing  the  act  which  he  is  depu-  97;   Press  Publishing  Co.   v.  Mon- 

ted  to  do,  does  it  in  such  a  man-  roe,   (1896)    73  Fed.  196,  19   C.  C. 

ner  as  would  render  him  liable  for  A.  429,  38  U.  S.  App.  410,  51  L. 

exemplary    damages,   his   principal  R,  A.  353;  Goddard  v.  Grand  Trunk 

is  liable,  for  the  act  is  really  done  By.,  (1869)  57  Me.  202,  2  Am.  Eeu. 

by      him." — Rucker      v.      Smoke,  39. 


128 


LAW  OF  DAMAGES 


ployees  and  agents  may  be  devised  in  such  utter  disre- 
gard of  the  rights  of  others,  that  obedience  to  them  will 
result  in  palpable  oppression  and  gross  wrong  to  indi- 
viduals. '  *  *^  Another  rule,  stated  in  an  Illinois  case,  is 
as  follows:  "If  the  w^rongful  act  of  the  agent  is  perpe- 
trated while  ostensibly  discharging  duties  within  the 
scope  of  the  corporate  purposes,  the  corporation  may  be 
liable  to  vindictive  damages. ' '  *^  Where  a  malicious  tort 
is  brought  home  to  the  corporation's  managing  officials, 
by  proof  either  of  authorization  or  of  ratification  by 
them,  it  is  generally  held  that  the  assessment  of  exem- 
plary damages  is  proper.*^  As  the  corporation  has  no 
mind  and  cannot  therefore  itself  entertain  malice,  exem- 
plary damages  could  never  be  assessed  against  a  corpo- 
ration in  the  absence  of  such  a  rule.    But  some  cases  go 


44 — Jeffersonville  v.  Eogers, 
(1867)  28  Ind.  1,  92  Am.  Dec.  276. 
So  also  in  Lake  Shore  &  M.  S.  Ey. 
Co.  V.  Prentice,  supra;  ami  Times 
Publishing  Co.  v.  Carlisle,  (1899) 
94  Fea.  762,  36  C.  C.  A.  475. 

"Artificial,  as  they  may  be,  there 
is  still  a  human  intelligence  and 
volition  controlling  their  affairs 
just  like  those  of  an  individual, 
and  which  may  act  wrongfully, 
maliciously,  and  recklessly,  thus 
laying  the  basis  for  exemplary 
damages.  Whatever  may  have  been 
the  doctrine  anciently,  it  is  now 
too  well  settled  to  be  uprooted, 
that  corporations  like  these  de- 
fendants, which  are  established 
and  conducted  in  whole  or  in  part 
for  the  pecuniary  benefit  of  the 
members,  are  liable  in  actions  for 
torts  in  the  same  way,  and  to  the 
same  extent  as  individuals  or 
natural  persons."  Western  Union 
Telegraph  Co.  v.  Eyscr,  (1873)  2 
Col.  141,  (161-162),  u.sing  in  part 
the  words  of  the  Jeffersonville  ease. 


supra.  This  is  a  clear  statement 
of  the  law  in  most  states,  though 
the  case  has  since  been  overruled 
as  to  the  allowance  of  exemplary 
damages  at  all  at  common  law  in 
Colorado. 

45— Singer  Mfg.  Co.  v.  Holdf odt, 
(1877)  86  HI.  455,  29  Am.  Eep. 
43. 

46 — Press  Publishing  Co.  v.  Mon- 
roe, (1896)  73  Fed.  196,  19  C.  C. 
A.  429,  38  U.  S.  App.  410,  51  L. 
E.  A.  353;  Goddard  v.  Grand 
Trunk  Ey.,  (1869)  57  Me.  202,  2 
Am.  Eep.  39;  Bingham  v.  Lipman, 
Wolfe  &  Co.,  (1901)  40  Ore.  363, 
67  Pae.  98. 

Conversely,  it  is  held  that,  where 
a  corporation's  chief  oflficers 
neither  authorize  nor  ratify  a 
malicious  tort,  the  corporation  is 
not  liable  in  exemplary  damages. 
Lake  Shore  &  M.  S.  Ey.  Co.  v. 
Prentice,  (1893)  147  U.  S.  101, 
13  Sup.  Ct.  261,  37  L.  ed.  97;  Sun 
Life  Assurance  Co.  v.  Bailey, 
(1903)  101  Va.  443,  44  S.  E.  692. 


EXEMPLARY  DAMAGES  129 

farther  and  allow  such  damages  to  be  recovered  of  a  cor- 
poration for  malicious  acts  of  servants,  conuuitted  with- 
out special  authorization  or  ratification  by  the  manag- 
ing officials.^"  Of  course,  such  would  always  be  the  hold- 
ing in  a  state  where  the  principal's  liability  is  deter- 
mined merely  by  the  fact  of  liability  of  the  agent.**  In 
cases  where  a  railroad  corporation  is  defendant,  courts 
have  sometimes  considered  the  fact  that  the  corporation 
is  in  a  public  business  and  that  the  assessment  of  exem- 
plary damages  would  be  conducive  to  a  more  complete 
fulfilment  of  its  public  duties.*^ 

Exemplary  damages  are  not  generally  allowed  against 
municipal  corporations.'^*^ 

53.  Joint  Defendants. — ''Damages  of  this  nature,  if 
ever  recoverable  against  several  defendants,  are  recover- 
able only  when  all  are  shown  to  have  been  moved  by  a 
wanton  desire  to  injury." ^^  ''Where  two  are  sued  for 
a  trespass,  and  one  has  so  acted  as  to  become  thus  liable 
and  the  other  not,  to  recover  such  damages  the  suit  should 
be  against  the  party  alone  who  incurs  the  liability,  * '  ^^ 

47 — Louisville   &   N.    R.    Co.   v.  may,  in  a  proper  case,  be  recovered 

Garrett,  (1881)  8  Lea  (Tenn.)  438,  for   a   willful   injury   to  land,   the 

41  Am.  Rep.  640.  case  would  be  exceptional,  indeed, 

48 — Ante,  p.  125.  when  vindictive  or  more  than  com- 

49 — Goddard  v.  Grand  Trunk  Ry.,  pensatory   damages   can   be   recov- 

(1869)    57    Me.    202,    2    Am.    Rep.  ered  against   a  municipal  corpora- 

39.  tion." — Ostrom  v.  City  of  San  An- 

50_Chieago  v,  Langlass,   (1869)  tonio,  (1903)  33  Tex.  Civ.  App.  683, 

52  ni.  256,  4  Am.  Rep.  603;  Ben-  77  S.  W.  829. 

nett  V.  Marion,  (1897)  102  la.  425,  51— Boutwell  v.  Marr.  (1899)  71 

71    N.   W.    360,   63    Am.    St.    Rep.  Vt.    1,    42   Atl.    607,   43    L.   R.    A. 

454.  803,    76    Am.    St.    Rep.    746.     See 

"It  is  scarcely  conceivable  that  also    Krug    v.    Pitass,    (1900)    162 

a   case   could   be   made   against   a  N.  Y.  154,  56  N.  E.  526,  76  Am.  St. 

municipal    corporation,    justifying  Rep.  317. 

punitive  damages." — Breese,  J.,  in  52 — Becker    v.    Dupree,     (1874) 

Chicago  V.  Martin,    (1868)    49  111.  75  HI.   167.    Contra:    St.   Louis  S. 

241,  95  Am.  Dec.  590.  W.    Ry.    Co.   v.    Thompson,    (1908) 

"While       exemplary       damages  102  Tex.  89,  113  S.  W.  144;  Louis- 
Bauer  Dam. — 9 


130  LAW  OF  DAMAGES 

although  some  courts  have  held  contra.  But,  at  common 
law,  it  has  been  held  that  exemplary  damages  are  recov- 
erable against  husband  and  wife  in  an  action  against 
them  for  the  malicious  trespass  of  the  wife,  although  the 
husband  is  free  from  improper  motive  or  other  blame  in 
the  premises.  This  decision  is  on  the  ground  of  the 
common  law  oneness  of  husband  and  wife.^^* 

54.  Evidence  of  the  Wealth  of  Defendant  Admissible. 

— In  most  actions,  evidence  of  the  wealth  of  the  defend- 
ant is  inadmissible;  but,  in  cases  involving  the  assess- 
ment of  exemplary  damages,  such  evidence  is  admitted.^^ 
This  is  for  the  purpose  of  determining  how  much  in 
damages  must  be  assessed  in  order  really  to  punish  the 
defendant. 

55.  Admissibility  of  Evidence  of  the  Poverty  of  the 
Plaintiff. — Evidence  of  the  plaintiff's  poverty  is,  on 
principle,  never  admissible  for  the  purpose  of  enhancing 
exemplary  damages,  and  some  courts  so  hold.^*  The  fact 
that  the  plaintiff  is  poor  does  not  in  any  way  affect  the 
question  what  amount  of  damages  is  necessary  in  order 
to  punish  the  defendant.  But  there  is  much  authority 
to  the  effect  that  evidence  of  the  pecuniary  condition  of 
the  plaintiff  is  admissible  in  cases  wherein  exemplary 
damages  are  proper.^*^ 

ville  &  N.  R.  Co.  v.  Roth,   (1908)  55— Cochran   v.   Ammon,    (1855) 

130  Ky.  759,  114  S.  W.  264,  citing  16    111.    316;    White    v.    Murtland, 

earlier  cases.  (1874)    71    111.   250,    22    Am.    Rep. 

52a— Lombard      v.      Batchelder,  100;    Beck    v.    Dowell,    (1892)    111 

(1886)  58  Vt.  558,  5  Atl.  511.  Mo.    506,    20    S.    W.    209,    33    Am. 

53— Chellis   v.    Chapman,    (1891)  St.    Rep.    547;    Heneky    v.    Smith, 

125  N.   Y.   214,   26   N.   E.   308,   11  (1882)    10   Ore.  349,  45  Am.  Rep. 

L.  R.  A.  784.  143. 

54 — Robertson  v.  Conklin,  etc., 
Co.,  (1910)  153  N.  Car.  1,  68  S. 
E.  899,  138  Am.  St.  Rep.  635. 


EXEMPLARY  DAMAGES  131 

CASE  ILLUSTRATIONS 

1.  Defendant  broke  his  contract,  by  which  he  had  agreed  to 
employ  plaintiff  to  cultivate  a  farm  on  shares.  An  instruction 
that  the  jury  may  assess  damages  "for  violation  of  faith"  in 
addition  to  damages  for  the  breach,  is  bad  as  authorizing  the 
assessment  of  vindictive  damages,  which  is  not  allowed  in  con- 
tract, with  very  rare  exceptions.^** 

2.  Defendant,  a  physician,  and  others,  got  plaintiff,  a  foreigner, 
intoxicated.  Plaintiff  was  then  induced  to  drink  a  glass  of  wine, 
into  which  defendant  put  a  large  portion  of  cantharides,  from 
which  plaintiff  was  made  ill  for  a  fortnight.  He  was  not  free 
from  the  effects  of  the  drug  for  several  months  after.  "Not- 
withstanding it  was  called  a  frolic,  yet  the  proceedings  appeared 
to  be  the  result  of  a  combination,  which  wrought  a  very  serious 
injury  to  the  plaintiff,  and  such  a  one  as  entitled  him  to  very 
exemplary  damages,  especially  from  a  professional  character,  who 
could  not  plead  ignorance  of  the  operation  and  powerful  effects 
of  this  medicine. ' '  ^^ 

3.  Defendant,  a  banker,  a  magistrate,  and  a  member  of  parlia- 
ment, who  had  been  drinking  too  freely,  trespassed  upon  plain- 
tiff's land,  hunting,  and  using  intemperate  and  threatening 
language  toward  plaintiff,  who  had  told  him  to  leave  the  premises. 
This  is  a  case  for  exemplary  damages.  A  verdict  for  the  plain- 
tiff in  the  sum  of  £500,  the  whole  amount  named  in  the  declara- 
tion, is  sustained.^* 

4.  Defendant  entered  plaintiff's  house  with  force  and  took 
plaintiff's  chattels.  Whether  the  assessment  of  punitive  damages 
is  warranted,  is  a  question  for  the  jury.  Such  damages  may  be 
assessed,  if  the  trespass  was  wanton,  wilful,  or  malicious,  or 
accompanied  with  such  acts  of  indignity  as  to  show  a  reckless  dis- 
regard of  the  rights  of  others.  ^^ 

5.  Defendant  illegally  and  wantonly  took  plaintiff's  horse  and 
dray,  and  detained  them  without  cause,  despite  the  repeated 
demands  of  plaintiff  that  he  return  them.  This  is  a  proper  case 
for  exemplary  damages.     The  defendant's  conduct  evinced  an 

56 — Hoy  V.  Gronoble,   (1859)    34  58 — Merest  v.  Harvey,  (1814)   5 

Pa.  9,  75  Am.  Dec.  628.  Taunt.  442,  128  Eng.  Repr,  761. 

57— Genay    v.    Norris,    (1784)    1  59— Cutler   v.   Smith,    (1870)    57 

Bay   (S.   Car.)    6.  Til.   252. 


132  LAW  OF  DAMAGES 

obstinate  determination  to  take  justice  into  his  own  hands.    There 
was  no  evidence  whatever  to  sustain  defendant's  claim  of  right.^'^ 

6.  Defendants  notified  plaintiff  and  his  customers  that  they 
held  a  patent  on  certain  goods  made  by  plaintiff,  that  plaintiff 
was  infringing  the  patent,  and  that  they  would  bring  suit  if 
plaintiff  continued  to  make,  or  his  customers  to  buy,  such  goods. 
Defendants  held  no  such  patent,  their  patent  on  such  goods 
having  expired.  The  assessment  of  punitive  damages  is  proper. 
Defendants  had  no  reasonable  ground  to  believe  the  statements 
to  be  true  at  the  time  they  issued  them.®^ 

7.  Defendant  express  company  undertook  to  carry  plaintiff's 
piano,  which,  as  it  was  notified,  was  to  be  used  at  once  in  plain- 
tiff's show.  Plaintiff  further  notified  defendant  that  any  delay 
would  result  in  a  loss  to  him  of  $200  per  night.  Defendant, 
showing  a  reckless  disregard  of  plaintiff's  rights,  delayed  the 
piano  for  four  days.  Verdict  for  $200  compensatory  and  $500 
exemplary  damages.    Judgment  on  verdict  aflBrmed.''^ 

8.  Defendant  negligently  permitted  a  vicious  ram  to  run  at 
large.  It  inflicted  injuries  on  plaintiff.  "Exemplary  damages  in 
cases  of  this  nature  can  only  proceed  from  gross  and  criminal 
negligence — such  negligence  as  evinces  on  the  part  of  the  de- 
fendant a  wanton  disregard  of  the  safety  of  others,  and  which 
is  in  law  equivalent  to  malice. ' '  ^^ 

9.  Defendant  negligently  ran  his  automobile  into  plaintiff's 
buggy,  in  which  plaintiff  was  riding.  There  was  evidence  tending 
to  show  that  defendant  could  have  prevented  his  automobile  from 
striking,  but  that  he  took  off  his  brake  and  put  on  all  the  power 
he  had,  with  the  purpose  of  going  through  the  buggy.  The  judg- 
ment of  the  court  below,  on  a  verdict  for  $50  actual,  and  $100 
exemplary  damages,  is  affirmed.  "We  think  defendant  had  a 
fair  trial  and  got  off  light. ' '  ^* 

10.  During  a  storm  in  the  night,  defendant,  operating  a  city 

60 — Summers        v.        Baumgard,  recklessness    on    the    part    of    the 

(1836)    9  La.   161.  icarrier. — 'Lord    v.    Maine    Central 

61— Stroud  V.  Smith,  (1900)   194  R.    Co.,    (1909)     105    Me.    255,    74 

Pa.   502,  45   Atl.   329.  Atl.   117. 

62 — Piero    v.    Southern    Express  63— Pickett  v.  Crook,  (1866)   20 

Co.,   (1916)   103  S.  Car.  467,  88  S.  Wis.    358. 

E.  269.     Not  so  where  there  is  no  61 — Williams  v.  Baldrey,   (Okla. 

malice,  fraud,  gross  negligence,  or  1915)   152  Pac.  814. 


EXEMPLARY  DAMAGES  133 

electric  lighting  system,  discovered  that  its  current  was  grounded 
somewhere.  Defendant  continued  to  run  its  plant  as  usual.  A 
few  hours  after  daylight,  when  a  number  of  persons  were  on 
the  street,  plaintiff's  intestate  was  killed  by  contact  with  the 
grounded  wire,  on  a  street  crossing.  Held,  that  such  negligence 
was  shown  as  to  warrant  the  assessment  of  exemplary  damages.^  ^ 

11.  In  the  rear  end  of  defendants'  store,  a  freight  elevator  was 
maintained,  with  a  shaft  door  opo.ning  upon  a  platform  in  the 
alley.  Plaintiffs'  son,  bringing  goods  to  defendants,  mistook 
this  door  for  a  rear  entrance,  opened  it,  walked  into  the  shaft, 
fell  to  the  bottom,  and  was  killed.  There  was  not  such  negligence 
of  defendants  shown  here  as  to  justify  the  assessment  of  ex- 
emplary damages.^^ 

12.  In  the  course  of  mining  operations,  defendant  wrongfully 
diverted,  corrupted  and  poisoned  water  of  a  stream,  to  the  injury 
of  plaintiff,  who  brought  action  and  procured  a  judgment.  Still, 
defendant  continued  the  nuisance.  In  a  second  action,  for  the 
continuance  of  the  wrong,  the  plaintiff  may  obtain  exemplary 
damages.^^ 

13.  Defendant's  building  overhung  plaintiff's  lot  and  delayed 
him  in  the  building  of  a  store  and  office  building.  Defendant 
believed  that  plaintiff  was  responsible  for  the  overhanging.  He 
delayed  removing  the  projection,  even  after  issuance  of  a  decree 
compelling  him  to  remove  it ;  but  this  delay  was  due  to  attempts 
to  devise  some  means  of  remedying  the  wall  without  causing  great 
injury  to  his  own  wall.  There  is  no  ground  for  giving  exemplary 
damages.^® 

14.  Plaintiff  demanded  the  use  of  a  telephone  of  defendant 
telephone  company,  which  the  latter  refused,  except  on  condition 
that  plaintiff  would  consent  to  a  prohibition  of  a  joint  use  of 
the  Bell  telephone,  which  plaintiff  refused  to  do.  Defendant  mis- 
takenly supposed  it  had  a  right  to  require  acquiescence  in  this 
condition.    In  an  action  brought  because  of  defendant's  refusal, 

65 — Texarkana    Gas    &   Electric  67 — Long  v.  Trexler,  (Pa.  1887) 

Light   Co.  V.  Orr,    (1894)    59  Ark.  8  Atl.  620. 

215,  27  S.  W.  66,  43  Am.  St.  Eep.  68— Burruss  v.  Hines,  (1897)  94 

30.  Va.  413,  26  S.  E.  875. 

66— Leahy  v.  Davis,   (1S94)   121 
Mo.  227,  25  S.  W.  941. 


134  LAW  OF  DMIAGES 

it  is  held  that  exemplary  damages  cannot  be  recovered,  as  de- 
fendant was  merely  asserting  what  it  believed  to  be  its  right.^® 

15.  A  landlord  went  upon  rented  premises  before  the  tenant 's 
term  ended,  broke  open  a  locked  building,  and  took  therefrom  his 
tenant's  cotton,  against  his  remonstrance.  Punitive  damages 
may  be  awarded,  although  the  cotton  be  bound  for  supplies  which 
the  landlord  has  furnished,  and  though  such  forcible  seizure  of 
it  be  made  for  the  purpose  of  selling  it,  and  though  it  be  fairly 
sold,  and  the  proceeds  applied  to  the  debt  for  supplies.'^'' 

16.  Defendant,  a  mortgagee  of  the  premises  in  which  plaintiff 
lived,  under  a  mistaken  belief  as  to  his  legal  rights,  entered  the 
premises  and  tore,  spoiled,  destroyed,  and  removed  articles  of 
furniture.    Exemplary  damages  may  be  assessed."^^ 

17.  A  lessee,  acting  under  an  honest  but  mistaken  belief  as  to 

title,  took  gas  from  the  land.     Exemplary  damages  cannot  be 
allowed.'^2 

18.  Plaintiff  was  a  passenger  on  defendant's  railroad.  He 
surrendered  his  ticket  to  a  brakeman,  who,  in  the  absence  of  the 
conductor,  was  authorized  to  demand  and  receive  it.  The  brake- 
man  afterward  approached  the  plaintiff,  and,  in  language  coarse, 
profane,  and  grossly  insulting,  said  that  plaintiff  had  neither 
surrendered  nor  shown  him  his  ticket.  The  brakeman  called 
plaintiff  a  liar,  charged  him  with  attempting  to  avoid  the  pay- 
ment of  his  fare,  and  with  having  done  the  same  thing  before, 
and  threatened  to  split  his  head  open  and  spill  his  brains  right 
there  on  the  spot.  The  brakeman  stepped  forward  and  placed 
his  foot  upon  the  seat  on  which  the  plaintiff  was  sitting,  and, 
leaning  over  the  plaintiff,  brought  his  fist  close  down  to  his 

69 — Gwynn     v.     Citizens'     Tele-  of  the  public  under  the  first  prin- 

phone  Co.,   (1904)    69  S.  Car.  ,434,  ciples  of  the  law  of  public  service 

48    S.    E.    460,    67    L.    B.    A.    Ill,  corporatiornsf 

104  Am.  St.  Rep.  819.     Under  all  70— Shores  v.  Brooks,  (1888)   81 

the  circumstances  of  this  case,  the  Ga.  468,   8   S.  E.  429,  12  Am.  St. 

decision    seems    at    least    question-  Rep.  332. 

able.     Shoruld  a  public  service  cor-  71 — Best  v.  Allen,  (1862)  30  HI. 

poration 's  belief  that  it  has  a  right  30,  81  Am.  Dec.  338. 

to    annex   unreasonable    conditions  72 — Gerkins     v.     Kentucky    Salt 

to   the  performance    of   its  duties,  Co.,   (1902)   23  Ky.  Law  2415,  100 

avail  to  protect  it  from  the  assess-  Ky.    734,    67    S.    W.    821,    66    Am. 

ment  of  exemplary  damages  for  an  St.   Rep.  370. 
act  in  gross  disregard  of  the  rights 


EXEMPLARY  DAMAGES  135' 

face,  and,  shaking  it  violently,  told  him  not  to  yip,  if  he  did,  he 
would  spot  him,  that  he  was  a  damned  liar,  that  he  never  handed 
him  his  ticket,  that  he  did  not  believe  he  paid  his  fare  either 
way.  This  misconduct  of  the  brakeman  became  known  to  the 
defendant,  but  it  continued  him  in  its  employ,  thus  practically 
ratifying  his  wrongful  acts.  This  is  a  proper  case  for  exemplary 
damages.    Verdict  for  $4,850  upheld.'^ 

19.  A  conductor  on  defendant's  train  suddenly  and  violently 
seized  the  plaintiff,  a  lady  passenger,  put  his  arms  about  her, 
and  repeatedly  kissed  her,  although  she  strongly  protested.  De- 
fendant immediately  discharged  the  conductor.  Judgment  for 
plaintiff  for  $1,000  affirmed,  but  only  on  the  ground  that  it  was 
fair  compensation.  Exemplary  damages  cannot  be  assessed  where 
the  principal  is  not  a  party  to  the  malice  of  the  agent."^^ 

20.  Plaintiff,  a  passenger  on  defendant's  train,  bought  the 
tickets  of  several  passengers,  which  were  not  in  terms  non- 
transferable. The  conductor,  because  of  this,  telegraphed  for  a 
police  officer,  who  boarded  the  train  as  it  approached  its  destina- 
tion. The  conductor  pointed  out  plaintiff,  ordered  his  arrest, 
searched  him  for  weapons,  placed  him  under  guard  in  another 
car,  and  would  not  permit  him  to  tell  the  cause  of  his  arrest  or 
to  speak  with  his  wife.  During  the  removal  of  the  plaintiff  from 
the  car,  the  conductor  said  to  the  plaintiff's  wife,  "Where's  your 
doctor  now  ? ' '  Plaintiff  was  not  permitted  to  assist  his  wife  with 
her  parcels  on  arriving  at  destination,  and  he' was  forcibly  taken 
to  the  station  house,  where  he  was  detained  until  the  conductor 
arrived.  The  conductor  then  filed  a  false  charge  against  him. 
He  was  released  on  bail;  and,  on  his  trial,  no  one  appearing 
against  him,  he  was  discharged.  Held,  that  this  is  not  a  case 
for  exemplary  damages,  unless  the  offense  be  brought  home  to 
the  persons  wielding  the  executive  power  of  the  corporation.'^^ 

73 — Goddard     v.     Grand     Trunk  75— Lake  Shore  &  M.  S.  By.  Co. 

lEailway,  (1869)  57  Me.  202,  2  v.  Prentice,  (1893)  147  U.  S.  101, 
Am.  Eep.  39,  37  L.  ed.  97,   13  Sup.   Ct.  261. 

74 — Craker  v.  Chicago  &  N.  W. 
Ey.  Co.,  (1875)  36  Wis.  657,  17 
Am.  Bep.  504. 


CHAPTER  XII 

Aggbavation  and  Mitigation  ^ 

56.  Aggravation  is  the  adding  to  or  making  heavier  of 
compensatory  damages  for  non-pecuniary  loss,  and  of 
exemplary  damages.  Both  non-pecuniary  compensatory 
damages  and  exemplary  damages  are  largely  in  the 
discretion  of  the  jury;  and  it  is  proper  that  the  jury 
consider  facts  and  circumstances  in  connection  with  the 
wrong.  A  compensatory  element  of  damage  may  be  ag- 
gravated by  circumstances  which  tend  to  make  greater 
the  damage  growing  out  of  the  wrong.  For  instance, 
the  compensation  for  an  assault  and  battery  may  be  in- 
creased because  of  the  fact  that  the  injury  is  rendered 
greater  by  being  perpetrated  before  a  large  crowd,  so 
as  to  humiliate  the  plaintiff  and  cause  him  mental  suf- 
fering. Exemplary  damages  may  be  aggravated  by 
facts  tending  to  show  a  higher  degree  of  malice.  The  ag- 
gravation of  damages  by  the  fact  of  defendant's  wanton- 
ness is  sometimes  put  upon  the  ground  that  this  fact 
really  makes  the  injury  greater.^ 

57.  Mitigation  is  the  lessening  of  non-pecuniary  com- 
pensatory damages  or  of  exemplary  damages.  Any  cir- 
cumstance tending  to  show  that  actual  non-pecuniary 
damage  is  less,  tends  to  mitigate  compensatory  dam- 
ages ;  and  any  circumstance  tending  to  show  lack  of  mal- 
ice or  a  lesser  degree  of  malice,  tends  to  eliminate  or 

1 — A  complete  exposition  of  the  2 — Meagher    v.    Driscoll,    (1868) 

principles   herein   set  forth   is   not       99  Mass.  281,  96  Am,  Dec.  759. 
attempted  here,  as  much  is  said  on 
the  matter  in  chapters  devoted  to 
specific  wrongs. 

136 


AGGRAVATION  AND  MITIGATION  137 

to  lessen  exemplary  damages.  The  lessening  of  pecun- 
iary damage  is  also  frequently  spoken  of  as  mitigation, 
as  in  a  case  wherein  an  employee's  pecuniary  loss  conse- 
quent upon  wrongful  discharge  is  diminished  by  his  ac- 
ceptance of  other  employment. 

In  mitigation,  defendant  may  show  that  his  act  has 
been  a  benefit,  and  not  an  injury,  to  the  plaintiff.  So, 
where  the  suit  is  to  recover  possession  of  land  and  dam- 
ages for  wrongful  holding  of  it  by  defendant,  the  lat- 
ter has  a  right  to  prove  in  mitigation  that  he  has  erected 
on  the  land  a  house,  which  the  plaintiff  will  recover  along 
with  the  land  in  the  event  of  a  verdict  for  the  plaintiff.^ 

Provocation  of  defendant  by  acts  of  plaintiff  may  be 
shown  in  mitigation  of  exemplary  damages,  and  it  has 
even  been  said  to  preclude  exemplary  damages.^  So, 
where  the  plaintiff  was  guilty  of  gross  misconduct  and 
fraud  against  the  defendant,  and  the  latter,  under  provo- 
cation of  the  wrong  and  without  malicious  motive,  caused 
a  false  imprisonment  of  the  plaintiff,  exemplary  dam- 
ages for  the  imprisonment  are  mitigated  by  evidence  of 
such  provocation.^  But  words  of  provocation  neither 
justify  an  assault  nor  mitigate  compensatory  damages 
therefor.*     Words  of  provocation  on  another  occasion 

3 — Meier  v.  Portland  Cable  Ey.  475;    Johnson    v.    McKee,     (1873) 

Co.,    (1888)    16   Ore.    500,    19    Pac.  27  Mich,  471;  Goucher  v.  Jamieson, 

610,  1   L.   E.   A.   856.  (1900)  124  Mich.  21,  82  N.  W.  663; 

4— Donnelly  v.  Harris,  (1866)  41  Osier  v.  Walton,    (1901)    67  N.  J. 

111.   126;   Kiff   V.   Youmans,    (1881)  Law    63,    50    Atl.    590;    Palmer    v. 

86   N.   Y.   324,   40   Am.   Eep.    543;  Winston-Salem  E.,  etc.,  Co.,  (1902) 

Brown     v.     Swineford,    (1878)     44  131    N.    Car.    250,    42    S.    E.    604; 

Wis.    282,    28    Am.    Eep.    582.  Mahoning  V.  E.  Co.  v.  De  Pascale, 

5— Johnson      v.      Von      Kettler,  (1904)  70  O.  St.  179,  71  N.  E.  633, 

(1872)    66  HI.  63.  65  L.  E.  A.  860,  1  Ann.  Cas.  896; 

6— Hendle  v.  Geiler,  (Del.  1895)  Goldsmith's  Adm'r  v.  Joy,   (1889) 

50    Atl.    632;    Donnelly    v.    Harris,  61  Vt.  488,  17  Atl.  1010,  4  L.  E,  A. 

(1866)  41  HI.  126;  Irlbeek  v.  Bierl,  500,  15  Am.  St.  Eep.  923;  Willey 

(1896)   101  la.  240,  67  N.  W.  400;  v.    Carpenter,    (1892)    64   Vt.    212, 

Lund  V.  Tyler,  (1901)   115  la.  236,  23  Atl.  630,  15  L.  E.  A.  853;  Wil- 

88  N.  W.   333;   Prentiss  v.   Shaw,  son  v.  Young,  (1872)  31  Wis.  574. 
(1869)    56   Me.   427,   96   Am.  Dec. 


138  LAW  OF  DAIMAGES 

than  that  of  defendant's  offense,  are  not  admissible  in 
mitigation."^  In  case  of  assault,  if  the  assault  has  not 
immediately  followed  plaintiff's  provocation,  such  provo- 
cation cannot  be  considered  in  mitigation.  If  defend- 
ant's *' blood  has  had  time  to  cool,"  provocation  does  not 
mitigate  damages  for  assault.^ 

Where  defendant  has  fairly  stated  all  the  facts  to  his 
counsel,  the  advice  of  counsel,  while  it  does  not  justify 
defendant's  subsequent  unlawful  act,  may  be  considered 
in  mitigation  of  exemplary  damages.**  But  advice  of 
counsel  cannot  mitigate  compensatory  damages.'" 

58.  Contributory  Negligence. — Where  the  contribu- 
tory negligence  of  the  plaintiff  does  not  bar  the  action 
altogether,  it  is  proper  to  consider  it  in  mitigation  of 
damages."  Many  statutes  have  declared  the  same  rule, 
notably  the  federal  employers'  liability  act  as  to  inter- 
state common  carriers,  under  which  this  matter  becomes 
one  of  great  importance.  This  act  provides  that  con- 
tributory negligence  of  an  employee  shall  not  bar  recov- 
ery, but  that  damages  shall  be  diminished  in  proportion 
to  the  amount  of  negligence  attributable  to  the  employee. 
But  the  statute  completely  wipes  out  the  defense  of  con- 
tributory negligence  in  all  cases  wherein  the  violation  by 

7— Baltimore  &  O.  R.  Co.  v.  Bar-  lins,    (1904)    69  S.  Car.  460,  48   S. 

ger,  (1894)  80  Md.  23,  30  Atl.  560,  E.  469. 

26  L.  R,  A.  220,  45  Am.  St.  Rep.  9— Shores   v.  Brooks,    (1888)    81 

319.  Ga.   468,  8   S.   E.  429,  12   Am.   St. 

"It  is  not  the  motive  or  the  Rep.  332. 
feelings  under  which  the  legal  10 — Sutherland  on  Damages,  4th 
wrong  is  committed,  which  deter-  ed.,  §  150,  citing  Richards  v.  San- 
mines  the  character  of  the  act,  or  derson,  (1907)  39  Colo.  270,  89  Pac. 
the  amount  of  the  actual  damages  769,  121  Am.  St.  Rep.  167. 
resulting  from  it." — Prentiss  v.  11 — Flanders  v.  Meath,  (1859) 
Shaw,  supra.  27   Ga.  358;   Lord   v.   Carbon   Iron 

8— Carson    v.    Singleton,    (1901)  Mfg.    Co.,    (1886)    42    N.    J.    Eq. 

23   Ky.  Law   1626,  65  S.   W.   821;  157,    6   Atl.   812;    Louisville    &   N. 

Corning  v.  Corning,  (1851)  6  N.  Y.  R.  Co.  v.  Conner,  (1872)   49  Tenn. 

97;    Stetlar    v.    Nellis,    (1871)    60  382. 
Barb.   (N.  T.)   524;   Davis  v.  Col- 


AGGRAVATION  AND  MITIGATION  139 

the  employer  of  any  statute  for  the  safety  of  employees 
has  contributed  to  the  injury  or  death  of  the  employee.^^ 

CASE  ILLUSTRATIONS 

1.  Defendant  committed  an  assault  and  battery  upon  the  plain- 
tiff. Held,  that  the  insult  and  indignity  inflicted  upon  the 
plaintiff  by  giving  him  a  blow  with  anger,  rudeness,  or  insolence, 
ought  to  be  considered  as  an  aggravation  of  the  tort.^^ 

2.  A  silk  manufacturer  sues  a  physician  for  slander,  charging 
that  defendant  falsely  told  plaintiff's  workmen  that  there  was 
arsenic  in  the  silk  worked  within  plaintiff's  factory.  As  a  result 
of  the  slander,  plaintiff,  who  was  in  the  employ  of  a  company, 
had  to  remain  away  from  the  company's  work  for  eight  days, 
but  the  company  made  no  deduction  for  his  lost  time.  Held, 
that  the  fact  of  this  non-deduction  cannot  be  considered  in 
mitigation.  "The  plaintiff  does  not  recover  because  he  was 
compelled  to  break  his  contract  with  the  company,  but  for 
his  own  time  and  trouble,  irrespective  of  his  contracts.  His 
cause  of  action  for  that  could  not  be  affected  if  a  stranger  saw 
fit  to  pay  him  for  the  same  time,  either  by  way  of  gift  or 
upon  consideration."  ^* 

12 — U.  S.  Ann.  Stat.  1916,  §  8659.  his  employer  an  amount  equal  to 

13 — Smith    V.    Holcomb,    (1868)  his    salary    during    the    period    of 

99  Mass.  552.  his  absence  from  work. — Nashville, 

14— Elmer  v.  Fessenden,    (1891)  C.    &    St.    L,    Ry.    Co.    v.    Miller, 

154  Mass.  427,  28  N.  E.   299.     So  (1904)    120  Ga.  453,  47  S.  E.  959, 

held    where    plaintiff,    disabled   by  67  L.  R.  A.  87.  1  Ann.  Cas.  210. 

defendant's   wrong,   was   paid   by 


CHAPTER  XIII 
Conflicts  of  Laws 

59.  In  General. — It  would  seem  to  be  an  elementary 
principle  of  conflicts  of  laws  that  a  plaintiff  cannot  in- 
crease his  substantive  rights  by  any  choice  of  jurisdic- 
tion in  which  to  bring  suit,  and  it  is  usually  so  held.  Sub- 
stantive rights  are  generally  determined  by  the  law  of 
the  place  in  which  or  by  virtue  of  whose  rules  of  law 
they  accrue.  It  seems  only  in  accord  with  reason  to  say 
that  a  right  to  have  damages  assessed  is  a  substantive 
right;  and  it  is  such,  according  to  the  weight  of  au- 
thority. The  measure  of  damages,  in  contract  or  in  tort, 
is  a  mere  incident  to  the  liability  to  which  it  attaches, 
and  must  be  determined  by  the  law  of  the  place  whose 
law  creates  the  right  to  damages.^ 

Throughout  this  field,  however,  there  are  numerous 
considerations  that  affect  the  decisions.  A  right  totally 
different  from  any  right  given  by  the  law  of  the  forum 
and  incompatible  with  any  remedy  of  the  law  of  the 
forum,  will  not  be  enforced.^ 

60.  Contracts. — ^In  contract,  the  measure  of  damages, 
like  other  matters  of  substantive  right,  is  determined  by 
the  intention  of  the  parties,  and  may  be  according  either 
to  the  law  of  the  place  of  contracting  or  the  law  of  the 
place  of  performance.  Ordinarily,  the  measure  of  dam- 
ages for  breach  of  contract  to  convey  land  is  governed 
by  the  law  of  the  place  where  the  land  is  situated.    XJs- 

1— Mills  V,  Dow,   (1890)   133  U.  2— Slater    v.    Mexican    National 

S.  423,  33  L.  ed.  717,  10  Sup.  Ct.  E.    Co.,    (1904)    194  U.   S.   120,  48 

413;    Bruce    v.    Cincinnati    R.    Co.,  L.    ed.    900,    24    Sup.    Ct.   581. 
(1885)  83  Ky.  174.  See  Sedg.  Dam. 
(9th   ed.)    §1373. 

140 


CONFLICTS  OF  LAWS  141 

ually  in  contract,  the  law  of  the  place  where  the  breach 
takes  place  governs  as  to  damages,  the  law  of  such  place 
being  both  the  law  contemplated  by  the  parties  and  the 
law  of  the  place  where  the  wrong  is  committed.  But  the 
measure  of  damages  may  be  determined  according  either 
to  the  law  of  the  place  of  contracting  or  to  the  law  of 
the  place  designated  for  performance,  according  to  the 
intention  of  the  parties.^ 

A  fruitful  source  of  litigation  as  to  the  measure  of 
damages,  and  especially  as  to  what  law  governs  such 
measure,  has  been  contracts  to  transmit  and  deliver 
telegrams.  Of  course,  on  principle,  the  law  of  the  forum 
should  not  affect  the  measure  of  damages,  and  so  it  is 
usually  determined  in  these  cases,  as  in  others.  The 
cases  presenting  most  difficulties  have,  in  the  past,  been 
those  based  upon  contracts  to  transmit  messages  from 
one  state  to  another.  This  field  was  in  a  state  of  con- 
fusion up  to  the  comparatively  recent  time  of  the  pas- 
sage of  a  federal  statute  bringing  telegraph  companies 
into  the  category  of  common  carriers  of  interstate  busi- 
ness and  making  them  amenable  to  federal  law.  Under 
these  statutes,  it  is  held  that  damages  for  breach  of  a 
telegraph  company's  contract  to  transmit  an  interstate 
message  are  governed,  not  by  any  state  law,  but  by  fed- 
eral law.* 

61.  Torts. — In  tort,  the  measure  of  damages  is  usually 
held  to  be  governed  by  the  law  of  the  place  where  the 

3 — See  Mills  v.  Dow,  (1890)  133  terest   given   by  way   of  damages 

U.  8.  423,  33  L.  ed.  717,  10  Sup.  has   sometimes  been  held  to  be  a 

Ct.  413.  remedial  matter,  governed  by  the 

Interest     agreed     upon     by     the  law    of    the    forum. — Barringer    v. 

parties  is  governed  by  the  law  of  King,  (1855)   5  Gray  (Mass.)   9. 

the   place   where    it    is    contracted  4 — Act   Cong.   June   10,   1910,  c. 

for  and  is  to  be  paid.— Winthrop  v.  309,  36  Stat.  539;  Western  U.  Tel. 

Carleton,  (1815)   12  Mass.  4.    Such  Co.    v.    Hawkins,    (Ala.    1917)    73 

interest    is    given    because    of    the  So.    973;    Western    U.    Tel.    Co.   v. 

agreement  of  the  parties.    But  in-  Showers,   (Miss.  1916)   73  So.  276. 


142  LAW  OF  DAMAGES 

tort  was  committed,  and  it  would  seem  that  this  would 
be  the  only  possible  sound  rule  on  this  subject.^ 

CASE  ILLUSTRATIONS 

1.  A's  administrator  sues  in  Illinois  for  the  wrongful  death 
of  A  in  Canada,  where  there  is  a  statute  allowing  recovery  in 
such  cases,  without  stated  limit.  In  Illinois,  there  is  a  statutory 
limit  of  $5,000  in  such  cases.  Held  that  the  Illinois  statute  does 
not  limit  recovery  in  this  case.^ 

2.  Plaintiff's  husband  died  of  personal  injuries  negligently 
inflicted  by  defendant  in  Pennsylvania,  where  damages  were 
not  restricted.  By  the  law  of  New  York,  the  state  of  the  forum, 
damages  in  such  cases  were  restricted  to  $5,000.  Held,  that 
the  action  could  be  maintained  in  New  York,  but  that  New 
York's  limitation  to  $5,000  applied." 

3.  Plaintiff  brings  action  in  Vennont  for  injuries  received 
while  in  defendant's  employ  in  Quebec.  Held,  that  the  meas- 
ure of  damages  is  governed  by  the  law  of  Quebec* 

4.  Plaintiff  was  a  passenger  on  one  of  defendant's  trains,  her 
entire  trip  being  within  the  state  of  Massachusetts.  Held,  in 
an  action  for  loss  of  her  baggage,  that  a  law  of  New  York,  the 
state  of  the  forum,  exempting  the  carrier  from  all  damages  for 
loss  of  baggage  in  excess  of  $150  value,  does  not  apply .^ 

5— Northern    Pacific    R.    Co.    v,  York,  etc.,  R.   Co.,   (1891)   126  N. 

Babcock,    (1893)     154    U.    S.   190,  Y.  10,  26  N.  E.  1050,  13  L.  R.  A. 

38  L.  ed.  958,    14    Sup.    Ct.    978;  458,  22  Am.  St.  Rep.  803. 

Hanna    v.    Grand    Trunk    Ry.    Co.,  8 — Osborne  v.  Grand  Trunk  Ry. 

(1891)  41  m.  App.  116.   This  seems  Co.,  (1913)  87  Vt.  104,  88  Atl.  512, 

correct,    but     there     are     holdings  Ann.     Cas.     1916  C     74.       Accord: 

contra.      See    Wooden    v.    Western  Northern    Pacific    R.    Co.    v.    Bab- 

N.  Y.,  etc.,  R.  Co.,  (1891)    126  N.  cock,   (1893)    154  U.  S.  190,  38  L. 

Y.    10,    26    N.    E.    1050,    13    L.    R.  ed.  958,  14  Sup.  Ct.  978;  Slater  v. 

A.  458,  22  Am.  St.  Rep.  803.  Mexican    National    R.    Co.,    (1904) 

6— Hanna   v.   Grand   Trunk  Ry.,  194  U.   S.    120,   48  L.   ed.   900,   24 

(1891)    41  111.  App.   116.  Sup.   Ct.   581. 

Rev.    Stat.    HI.    1917,   Chap.    70,  9— Hasbrouck  v.  New  York  Cen- 

§  2,  however,  has  since  prohibited  tral,    etc.,    R.    Co.,    (1911)    202    N. 

the  bringing  of  actions  in  Illinois  Y.  363,  95  N.  E.  808,  35  L.  R.  A. 

for    deaths    occurring   outside    the  (N.    S.)    537,    Ann.    Cas.    1912  D 

state.  1150. 

7 — Wooden     v.     Western     New 


CONFLICTS  OF  LAWS  143 

5.  Defendant  contracted  in  Mississippi  to  transmit  a  telegraph 
message  from  plaintiff  to  plaintiff's  daughter  in  Kentucky.  Held, 
that  the  measure  of  damages  for  negligent  delay  in  delivery, 
under  federal  statutes,  is  determined  by  federal  law.^® 

10— Western  U.  Tel.  Co.  v.  Show- 
ers, (Miss.  1916)  73  So.  276. 


CHAPTER  XIV 

General  Pkinciples  of  Pleading  and  Practice 

62.  Damage  as  the  Gist  of  an  Action.— There  are  some 
■wrongs  of  such  a  nature  that  the  very  fact  of  their  per- 
petration imports  injury,  in  the  legal  sense,  it  being  cer- 
tain that  such  a  wrong  cannot  be  committed  without  in- 
flicting damage.  In  a  case  involving  such  a  wrong,  mere 
general  pleading  of  the  wrong  in  the  declaration  is  suf- 
ficient notice  to  the  defendant  that  damage  has  resulted 
from  the  wrong  alleged.  Pleading  specially  the  damage 
is  not  necessary  in  such  an  action;  that  is,  the  very  fact 
that  the  wrong  is  committed  imports  damage,  so  that, 
without  any  special  allegation  shomng  just  how  he  is 
damaged,  the  plaintiff  can  set  up  a  general  statement 
of  the  wrong,  and  this  entitles  him,  upon  proof,  to  at  least 
nominal  damages.  Familiar  examples  of  such  wrongs 
are:  breach  of  contract,  battery,  the  use  of  words  that 
are  libelous  or  slanderous  per  se,  trespass  to  realty,  and 
conversion.* 

Many  wrongs  are  such  that  the  mere  fact  of  their  com- 
mission does  not  show  any  right  of  action  in  any  one. 
Negligence  is  committed  millions  of  times  each  day,  with 
damage  to  only  a  comparatively  few  persons.  The  vast 
majority  of  persons  guilty  of  negligence  cannot  be  sued 
for  their  negligence,  because  they  have,  despite  their 
neglect  of  duty  to  others,  done  no  damage.  In  fact,  neg- 
ligence is  not  usually  a  legal  wrong  at  all,  unless  it  re- 
sults  in   damage.     Nuisance,   fraud,   and   many   other 

1 — "Every  injury  imports  dam-  Lynn  v.  Mayor  of  London,  (1791) 

age  in  the  nature  of  it;  and,  if  no  4  T.  E.   130,  100  Eng.  Repr.  933; 

other    damage    is    established,   the  cited   in    Webb   v.   Portland    Mfg. 

party  is  entitled  to  a  verdict  for  Co.,    (1838)    Fed.    Cas.    17,322,    3 

nominal      damages." — Mayor      of  Sumn.  189. 

144 


PLEADING  AND  PRACTICE  145 

wrongs,  may  or  may  not  cause  damage,  and  so  the  mere 
allegation  of  the  wrong,  without  special  allegation  of 
damage,  does  not  make  out  a  cause  of  action.^ 

63.  General  and  Special  Damages.^ — When  a  defend- 
ant is  summoned  to  plead  to  a  declaration,  it  is  not  only 
good  law,  but  the  soundest  common  sense,  to  say  that 
the  declaration  is  complete  and  sufficient  notice  to  him 
of  the  plaintiff's  claim  for  all  damage  which  necessarily 
results  from  the  general  wrong  set  up  in  the  declara- 
tion. Compensation  for  the  damage  necessarily  result- 
ing from  the  general  wrong  alleged  is  known  as  general 
damages. 

There  are,  in  many  cases,  elements  of  damage  that  are 
not  necessary  results  of  the  wrong  alleged.  Damages  can- 
not be  awarded  for  such  elements  without  notifying  the 
defendant,  by  the  declaration,  that  compensation  for 
them  is  claimed.  It  is  obvious  that,  if  the  plaintiff  were 
allowed  to  recover  for  results  that  are  not  the  necessary 
or  usual  results  of  the  wrong  that  is  merely  generally 
alleged  in  the  declaration,  the  defendant  would  often  be 
surprised  and  destitute  of  any  opportunity  to  gather 
evidence  to  rebut  that  introduced  on  the  trial.  Compen- 
sation for  unusual  proximate  results  of  a  wrong  must 
therefore  always  be  grounded  in  special  pleading  and 
proof.    Such  compensation  is  known  as  special  damages. 

The  necessity  of  special  pleading  of  damage  comes  up 
in  two  kinds  of  cases :  first,  those  in  which  damage  is  the 

2— "No  legal  injury  is  caused  3— "Special  damages"  must  not 
*  *  •  when  there  is  no  special  ^e  confused  with  "special  dam- 
damage  if  special  damage  is  an  «?«•"  The  latter  is  particular 
element  of  the  legal  injury,  as  in  ^^™^g«    '""^^'^^    ^^    *^'    P^^^'^*^^ 


slander  not  per  se,  nuisance,  fraud, 


because  of  a  wrong  also  generally 

,.  ,     ,  ,  ,  damaging  others,  as  in  the  case  orf 

negligence,  removal  of  lateral  sup-  ^,.         .  -rm. 

.  ^  a  public  nuisance.     Where  a  nui- 

port,   procuring   refusal    of  breach  ^^^^^    .^^^^^    ^^^^^^   t^    ^   ^^^^^ 

of  contract,  slander  of  title,  maJi-  neighborhood,  one  resident  cannot 

cious  prosecution  not  defamatory."  maintain    an   action    therefor,   un- 

— Willis  on  Damages,  p.  17.  less  he  can  show  special  damage. 
Bauer  Dam. — 10 


146  LAW  OF  DAMAGES 

gist  of  the  action,  so  that  no  recovery  whatever  can  be 
had  without  special  pleading ;  and  second,  those  in  which 
the  general  statement  of  the  wrong  imports  damage,  but 
in  which  the  plaintiff  desires  to  recover  for  other  ele- 
ments of  damage  than  those  usually  resulting  in  such 
a  case.  In  the  first  type,  the  right  to  damages  is  grounded 
entirely  in  special  pleading;  in  the  second,  the  right  to 
damages  is  grounded  partly  in  the  general  statement  of 
the  cause  of  action  and  partly  in  special  pleading  of  ele- 
ments of  damage  in  regard  to  the  claim  of  which  a  mere 
general  statement  gives  no  notice/ 

Among  special  damages  recoverable,  if  properly 
pleaded,  are  damages  for  liability  incurred  but  not  paid, 
for  reasonable  and  necessary  expenses  caused  by  the 
wrongful  act  complained  of,  such  as  the  fees  of  an  at- 
torney employed  to  obtain  a  discharge  from  an  illegal 
arrest,  physicians'  bills  incurred  for  a  cure  of  bodily 
injuries,  and  the  like.^ 

CASE    ILLUSTRATIONS 

1.  Defendant  leased  a  store  building  to  plaintiff  for  one  year, 
but  later  leased  to  other  parties  and  refused  to  give  plaintiff 
possession.  Held,  that  plaintiff  may  recover  the  difference  be- 
tween the  rent  to  be  paid  and  the  value  of  the  term  at  the  time 
of  the  breach,  without  specially  pleading  the  loss  of  such  dif- 
ference.   Such  damage  is  presumed.^ 

2.  Defendant  bank  wrongfully  refused  payment  of  plaintiff's 
checks.  Held,  that  plaintiff,  having  averred  and  proved  that 
it  was  a  trader  and  that  its  checks  were  wrongfully  dishonored 
by  defendant,  the  law  presumes  damage  to  plaintiff's  financial 
reputation  and  credit.'' 

4 — The    principles    of    this    sub-  6 — Green     v.     Williams,    (1867) 

ject    are    further    brought    out    by  45  111.   206. 

portions    of    chapters    on    varioms  7 — J.    M.    James    Co.    v.    Contin- 

particular  wrongs.  ental   National   Bank,    (1900)    105 

5— Donnelly       v.       Hufschmidt,  Tenn.  1,  58  S.  W,  261,  51  L.  R.  A. 

(1889)    79   Calif.   74,  21   Pac.  546;  255. 
Nelson     v.     Kellogg,     (1912)     162 
Calif.    621,    123    Pac.    1115,    Ann. 
Gas.    1913  D   759. 


PARTH 
COMPENSATION  AND  ITS  ELEMENTS 

CHAPTER  XV 

Compensation  in  General 

64.  The  Amount  of  Damages  assessed  in  favor  of  the 
plaintiff,  against  the  defendant,  is  usually  intended  to 
be  commensurate  with  the  amount  of  damage  actually 
and  certainly  suffered  by  the  plaintiff  as  a  result  of  de- 
fendant's wrong,  i.  e.,  as  a  result  so  connected  causally 
with  the  wrong  as  to  warrant  holding  defendant  liable 
for  it.^  All  damages  awarded  are  by  way  of  compensa- 
tion, except  exemplary  damages,  properly  so  called,^  and 


1 — "As  to  the  question  respect- 
ing the  measure  of  damages,  it 
is  a  general  and  very  sound  rule 
of  law,  that  where  an  injury  has 
been  sustained  for  which  the  law 
gives  a  remedy,  that  remedy  shall 
be  commensurate  to  the  injury  sus- 
tained. ' ' — Rockwood  V.  Allen, 
(1811)  7  Mass.  254. 

"Every  one  shall  recover  dam- 
ages in  proportion  to  his  prejudice 
which  he  hath  sustained." — Holt, 
C.  J.,  in  Ferrer  v.  Beale,  (1701) 
1  Ld.  Eaym.  692,  91  Eng.  Repr. 
1361. 

"The  rule  of  recovery  is  com- 
pensation. ' ' — Leeds  v.  Metropoli- 
tan Gas  Light  Co.,  (1882)  90  N. 
Y.  26. 

"The  general  rule  is,  that  when 
a  wrong  has  been  done,  and  the 
law  gives  a  remedy,  the  compen- 
sation shall  be  equal  to  the  injury. 


The  latter  is  the  standard  by  which 
the  former  is  to  be  measured.  The 
injured  party  is  to  be  placed,  as 
near  as  may  be,  in  the  situation  he 
would  have  occupied  if  the  wrong 
had  not  been  committed.  In  some 
instances  he  is  made  to  bear  a 
part  of  the  loss,  in  others  the 
amount  to  be  recovered  is  allowed, 
as  a  punishment  and  example,  to 
exceed  the  limits  of  a  mere  equiv- 
alent. ' ' — Wicker  v.  Hoppock, 
(1867)  6  Wall.  (U.  S.)  94,  18  L. 
ed.  752. 

See  also  McMahon  v.  City  of 
Dubuque,  (1898)  107  la.  62,  77  N. 
W.  517,  70  Am.  St.  Rep.  143;  and 
8  R.  C.  L.  431,  and  eases  there 
cited. 

2 — Some  so-called  exemplary 
damages  are  really  compensatory. 
See  p.  120. 


147 


148  LAW  OF  DAMAGES 

nominal  damages  merely  vindicating  plaintiff's  right  of 
action.  The  great  principal  purpose  of  the  law  of  dam- 
ages is  to  give  compensation  for  the  damage  inflicted 
upon  the  plaintiff  by  the  defendant. 

65.  **  'Compensatory  Damages'  and  'Actual  Damages' 
are  synonymous  terms. ' ' ''  The  former  term  is,  however, 
clearly  preferable  to  the  latter,  avoiding,  as  it  does,  all 
confusion  with  ' '  actual  damage  "  or  "  actual  loss. ' '  Com- 
pensatory damages  are  compensation  for  actual  damage. 

66.  Pecuniary  Condition  of  the  Parties  as  Affecting 
the  Amount  of  Compensation. — Ordinarily,  the  wealth  or 
poverty  of  the  parties  does  not  increase  or  diminish  the 
amount  of  plaintiff's  damage;  and  so,  usually,  evidence 
of  the  pecuniary  condition  of  the  parties  is  immaterial 
and  inadmissible.  But  the  fact  that  plaintiff  is  poor  or 
that  defendant  is  rich,  may  affect  seriously  the  amount 
of  plaintiff's  actual  damage,  under  the  peculiar  circum- 
stances of  the  individual  case.^  For  instance,  in  an  ac- 
tion by  a  husband  and  wife  for  an  assault  and  battery 
upon  the  wife,  "pain  and  suffering  may  be  much  greater 
where,  from  his  pecuniary  condition,  the  husband  is  un- 
able to  furnish  medical  aid,  remedies,  apartments  and 
nursing,  such  as  ample  means  would  afford."  ^  In  some 
cases,  as  in  slander,  the  plaintiff's  actual  damage  may 
be  increased  by  the  fact  of  his  own  good  standing  finan- 
cially and  socially.*^  The  good  financial  and  social  stand- 
ing of  the  defendant,  in  a  slander  case,  may  enhance  the 
damage  to  the  plaintiff,  because  statements  made  by  a 

3 — Gatzow    V.    Buening,    (1900)  5 — Cachran    v.    Ammon,    supra. 

106  Wis.  1,  81  N.  W.  1003,  49  L.  See  also  White  v.  Murtland,  (1874) 

R.  A.  475,  80  Am.  St.  Rep.   17.  71  111.  250,  22  Am,  Rep.  100. 

4 — Cochran    v.    Ammon,    (1855)  6 — Clements  v.  Maloney,   (1874) 

16  HI.  316;  Bump  v.  Betts,  (1840)  55  Mo.  352. 
23  Wend.  (N.  Y.)  85. 


COMPENSATION  IN  GENERAL  149 

person  standing  high  in  his  community  are  more  likely 
to  be  believed  than  are  statements  by  other  persons. 

It  is  our  purpose  to  treat,  in  the  chapters  that  follow, 
the  most  important  kinds  of  damage  in  compensation  for 
which  damages  may  be  awarded. 


CHAPTER   XVI 

Loss  OF  Time,  Wages,  and  Earning  Power 

67.  Time. — Loss  of  time  is  very  commonly  a  head  of 
damage  in  cases  of  personal  injury.  It  also  figures  in 
other  tort  cases  and  often  appears  in  actions  on  con- 
tracts. Time  is  purely  a  pecuniary  element  of  damage.^ 
Proof  simply  that  the  plaintiff  has  lost  a  certain  amount 
of  time  as  a  result  of  the  defendant's  wrong,  will  not 
entitle  the  plaintiff  to  any  substantial  damages  what- 
ever.2  In  arriving  at  the  value  of  the  time  lost  by  the 
plaintiff  by  reason  of  the  wrong  he  has  suffered,  the  jury 
must  be  governed  by  the  same  rules  as  to  certainty  and 
proximity  as  in  regard  to  any  other  element  of  damage. 
The  jury  cannot  resort  to  mere  conjecture  as  to  the  value 
of  the  time  lost.  Where,  however,  there  is  substantially 
no  evidence  of  the  money  value  of  the  time  lost,  it  has 
been  held  that  the  court  might  be  justified  in  telling  the 
jury  that  the  loss  of  time  may  be  considered  in  deter- 
mining the  extent  of  the  injury  and  the  amount  of  dam- 
age necessarily  suffered  therefrom.^  Although,  where 
loss  of  certain  profits  is  the  proximate  and  sole  result  of 
loss  of  time,  such  profits  may  be  taken  as  a  basis  for  com- 
puting the  value  of  plaintiff's  time,  such  is  not  the  case 
where  the  profits  are  uncertain  and  contingent,  and  so 
the  plaintiff  can  recover  only  the  general  value  of  his 
time,  as  shown  by  the  evidence.^    If  plaintiff  has  suf- 

1 — ^Leeds     v.     Metropolitan    Gas  1085;  Judice  v.  Southern  Pae.  Co., 

Light  Co.,  (1882)  90  N.  Y.  26.   See  (1895)    47   La.   Ann.    255,    16   So. 

also  Ransom  v.  New  York  &  E.  R.  816. 

Co.,  (1857)  15  N.  Y.  415.  3 — Smith  v.  Whittlesey,  supra. 

2 — Leeds    v.    Metropolitan    Gas  4 — Howe  Sewing  Machine  Co.  v. 

Light   Co.,   supra;   Smith   v.  Whit-  Bryson,  (1876)  44  la.  159,  24  Am. 

tlesey,  (1906)  79  Conn.  189,  63  Atl.  Rep.  735. 

150 


LOSS  OF  EARNINGS  151 

fered  special  damage  through  his  loss  of  time,  he  must 
specially  plead  and  prove  it.  A  verdict  merely  as  to 
general  damages  may  rest  largely  in  conjecture,  but  a 
verdict  based  partly  or  wholly  upon  special  damages, 
such  as  may  arise  from  loss  of  time,  must  be  grounded 
in  proof.^ 

Where  a  carrier  wrongfully  refuses  to  deliver  freight 
to  the  consignee,  who  has  applied  for  it  and  tendered 
the  price  of  carriage,  and  the  consignee  is  wrongfully 
compelled  to  return  and  apply  again,  he  is  entitled  to 
compensation,  not  only  for  the  expenditures  proximately 
caused  by  the  wrong,  but  also  for  the  time  consumed 
by  the  extra  trip  to  the  carrier's  office.^  So  also,  where 
a  passenger  has  been  wrongfully  delayed  in  carriage  or 
carried  beyond  his  destination,  he  may  recover  of  the 
carrier  for  his  loss  of  time  J 

68.  Wa^es  or  Earnings. — Wages  which  the  plaintiff 
has  failed  to  make,  because  of  the  injury  inflicted  upon 
him  by  the  defendant,  may  be  recovered.  The  question 
for  the  jury,  in  such  cases,  is  not,  **How  much  might  the 
plaintiff  have  earned  but  for  the  accident?"  but  rather, 
''How  much  would  he  have  earned?"  i.  e.,  in  all  prob- 
ability, in  view  of  his  earnings  to  the  date  of  the  injury 
and  other  relevant  known  facts  appearing  in  evidence. 

5 — Smith   V.   Whittlesey,    (1906)  priate  evidence,  the  jury  must  be 

79  Conn.  189,  63  Atl.  1085,  treating  governed    by    such    evidence,    and, 

damages  from  loss  of  time  as  being  in  its  absence,  are  not  permitted  to 

special,  says:    "An  ascertainment  resort  to  mere  conjecture." 
of  the  amount  of  general  damages,  6 — Suth.    Dam.,    4th     ed.     §  911, 

or  damages  implied  by  law  as  the  citing  Waite  v.  Gilbert,  (1852)   10 

necessary   results   of   a   bodily   in-  Cush.    (Mass.)    177. 
jury    wrongfully    inflicted,    is     ex  7 — Dalton   v.   Kansas  City,   etc., 

necessitate    rei    largely    controlled  E.    Co.,    (1908)    78    Kan.    232,    96 

by  conjecture.     But,  in  ascertain-  Pac.    475,    17    L.    E.    A.    (N.    S.) 

ing  the  amount  orf  a  pecuniary  loss  1226;  Trigg  v.  St.  Louis,  K.  C.  & 

not  necessarily  a  result  of  the  in-  N.  E.  Co.,   (1881)    74  Mo.   147,  41 

jury  but  dependent   for   its   exist-  Am.  Eep.  305;  Texas  &  P.  E.  Co., 

ence   and   amount  upon   facts   and  v.  Pollard,   (1884)    2  Willson  Tex. 

dTCumstances      requiring      appro-  Civ.  Cas.  Ct.  App.  424. 


152  LAW  OF  DAMAGES 

Proof  must  be  given  of  the  actual  amount  plaintiff  was 
earning  at  the  time  such  earning  was  interrupted  by  the 
injury.^  However,  the  fact  that  plaintiff's  earnings  are 
obtained  in  an  occupation  that  yields  varying  returns, 
does  not  preclude  the  plaintiff  from  recovering  substan- 
tial damages.  In  such  a  case,  if  his  earnings  do  not 
embrace  speculative  elements,  he  has  a  right  to  intro- 
duce evidence  as  to  amounts  he  has  been  earning  pre- 
viously.® 

69.  Earning  Power. — Not  only  may  the  plaintiff  re- 
cover for  wages  that  he  has,  at  the  time  of  the  trial, 
already  been  prevented  from  earning,  by  the  injury;  but 
he  may  recover  for  the  temporary  or  permanent  injury 
to  his  power  to  get  wages  or  earnings.  Here,  as  else- 
where, the  requirement  of  certainty  plays  a  prominent 
part.  What  the  value  of  the  plaintiff's  earning  power 
would  have  been  but  for  the  injury,  is  determined  partly 
from  evidence  as  to  the  wages  he  was  getting  at  the  time 
of  the  interruption  of  his  work  by  the  injury^  and  the 
temporary  or  permanent  nature  of  the  injury,  and  partly 
by  evidence  of  other  facts,  such  as  plaintiff's  age,  habits, 
health,  strength,  occupation,  and  reasonable  prospects  of 
increased  earnings.^®  The  plaintiff  has  a  right  to  be  com- 
pensated for  **the  pecuniary  loss  sustained  through  in- 
ability to  attend  to  a  profession  or  business,  as  to  which, 
again,  the  injury  may  be  of  a  temporary  character,  or 
may  be  such  as  to  incapacitate  the  party  for  the  re- 
mainder of  his  life."^^  Where  the  plaintiff  is  perma- 
nently deprived  of  his  earning  power,  it  becomes  impor- 

8 — Camparetti  v.  Union  Ry.  Co.,  10 — ^Eiehmond  &  D.  R.  Co.  v.  Alli- 

(1904)  88  N.  Y.  Supp.  425,  95  App.  son,   (1890)    86  Ga.    145,   12   S.   E. 

Div.  66.  352,  11  L.  R.  A.  43. 

9— Lund    V.    Tyler,    (1901)    115  11— Phillips  v.  London  &  S.  W. 

la.   236,  88  N.   W.  333,  in  which  R.  Co.,  (1879)  L.  E.  4  Q.  B.  Div. 

plaintiff  was  permitted  to  recover  406. 
lost    earnings,    although    his    occu- 
pation was  fishing. 


LOSS  OF  EARNINGS  153 

tant  to  ascertain  ap  accurately  as  possible  the  plaintiff's 
expectancy  of  life  at  the  time  of  the  injury.^^ 

**The  loss  of  earning  power  is  not  always  easy  of  cal- 
culation. It  involves  an  inquiry  into  the  value  of  the 
labor,  physical  or  intellectual,  of  the  person  injured,  be- 
fore the  accident  happened  to  him  and  the  ability  of  the 
same  person  to  earn  money  by  labor  physical  or  intel- 
lectual, after  the  injury  was  received. 

* '  The  profits  of  a  business  with  which  one  is  connected 
cannot  *  *  *  be  made  use  of  as  a  measure  of  his 
earning  power.  Such  evidence  may  tend  to  show  the 
possession  of  business  qualities,  but  it  does  not  fix  their 
value. ' '  ^^ 

Only  where  promotion  of  the  plaintiff  was  reasonably 
certain  at  the  time  of  the  injury,  can  the  prospect  of 
such  promotion  be  considered  in  estimating  damages.^* 

Only  the  present  worth  of  earnings  which  the  plain- 
tiff would  have  made  in  future  years  but  for  the  diminu- 
tion or  destruction  of  his  earning  power,  can  be  allowed ; 
and  it  therefore  is  error  for  a  jury  to  add  up  all  such 
future  earnings  and  allow  them,  with  no  reduction  be- 
cause they  are  paid  now  instead  of  in  the  future.^  ^ 

70.  Loss  of  Physical  Power,  Independent  of  Loss  of 
Ability  to  Earn  Money. — The  fact  that  plaintiff  has  not 
used  his  physical  power  for  the  purpose  of  earning 
money,  does  not  bar  his  right  to  substantial  damages 
for  the  loss  of  such  power.  A  married  woman  may  not 
have  used  her  physical  power  for  the  purpose  of  earn- 
ing money,  but  that  fact  does  not  bar  her  right  to  re- 

12 — Life  tables,  in  common  use  14 — Kichmond    &    D.    R.    Co.    v. 

among    insurance    companies,    are  Allison,    (1890)    86  Ga.   145,   12  S. 

usually  introduced  in  evidence  to  E.  352,  11  L.  R.  A.  43. 

show    the    reasonable    expectancy  15 — Goodhart  v.  Pennsylvania  R. 

of  life  of  the  plaintiff.  Co.,  (1896)  177  Pa.  1,  35  Atl.  191, 

13 — Goodhart     v.     Pennsylvania  55  Am.  St.  Rep.  705. 
R.   Co.,   (1896)    177  Pa.   1,  35  Atl. 
191,  55  Am.  St.  Rep.  705. 


164  LAW  OF  DAMAGES 

cover  for  an  injury  that  prevents  her  from  walking  with- 
out crutches.^®  One  kind  of  loss  of  physicar  power,  of 
no  importance  as  to  earnings,  is  loss  or  impairment  of 
procreative  power;  and  yet  it  is  an  important  element 
of  damage,  for  which  immense  verdicts  are  often  sus- 
tained." 

CASE   ILLUSTRATIONS 

1.  Plaintiff,  in  an  action  for  personal  injury,  seeks  to  recover 
for  loss  of  time  and  loss  of  earnings  as  two  separate  elements 
of  damage.  Held,  that  there  is  no  logical  distinction  between 
the  two  elements.  1® 

2.  Plaintiff,  a  freight  conductor,  was  so  injured  through  the 
negligence  of  the  railroad  company,  that  he  had  to  have  his 
left  arm  amputated.  Held,  that  plaintiff  can  recover  for  di- 
minished earning  capacity.  ^^ 

16— Atlanta  St.  R.  Co.  v.  Jacobs,  96   Mo.   App.   592,   70   S.   W.   911. 

(1891)    88   Ga.   647,   15   S.   E.   825.  Wages  or  earnings  are  merely  the 

See    also    Colorado    Springs,    etc.,  amount    that    best    measures    the 

Ky.  Co.  V.  Nichols,  (1907)  41  Colo,  value  of  the  plaintiff's  time. 
272,  92  Pac.  691,  20  L.  R.  A.  (N.  19— Chicago,  B.  &  Q.  R.  Co.  v. 

S.)    215.  Warner,    (1884)    108   111.   538,   say- 

17— St.  Louis,  I.  M.  &  S.  R.  Co.,  ing:    <'That  both  arms  are  useful 

(1911)    99    Ark.    265,    137    S.    W.  to  all,   and  indispensable   in   most 

1103,  Ann.  Cas.  1913  B  141;  O'Gara  of  the  avocations  of  life,  is  but  a 

V.    St.    Louis    Transit    Co.,    (1907)  part    of    the    common    information 

204  Ma.  724,  103  S.  W.  54,  12  L.  of  mankind  in  general,  and  hence 

R.   A.    (N.    S.)    840,   11   Ann.   Cas,  it  required  no  other  proof  to  estab- 

850.  lish  it.*' 

18— Stoetzle  v.  Sweringen,  (1902) 


CHAPTER   XVII 

Property 

71.  The  Loss  of  Goods  or  Lands  or  Rights  Therein  is 
among  the  most  important  elements  of  damage,  both  in 
contract  and  in  tort.  Such  a  loss  is  a  pecuniary  element 
of  damage,  and  usually  the  assessment  of  damages  for 
it  is  a  comparatively  simple  matter,  there  being  none  of 
the  annoying  conjectures  and  uncertainties  so  common 
in  the  assessment  of  damages  for  non-pecuniary  ele- 
ments of  loss.  The  assessment  of  damages  for  loss  of 
goods  or  lands  is  usually  a  simpler  matter  than  the  as- 
sessment of  damages  for  even  other  pecuniary  elements. 

In  contract,  we  have  the  action  for  breach  of  covenant 
against  incumbrances  and  of  covenant  of  title,  and  many 
other  actions  involving  damages  for  loss  of  property  or 
of  property  rights.  Destruction  or  taking  of  property 
and  injury  thereto,  are  among  the  most  usual  elements 
of  damage  to  be  compensated  for  in  tort  cases.  The 
guiding  principle  here,  as  is  usual  elsewhere,  is  com- 
pensation. Damages  are  assessed  in  such  sum  as  to 
compensate  for  the  loss  of  property.  The  details  of  this 
subject  are  more  fully  developed  in  other  chapters 
throughout  a  large  portion  of  this  work.* 

1 — See       especially:         Chapter  tion   is   recoverable,   measured   by 

XXVIII,   "Contracts    Eelating   to  the  value  of  the  property  at  the 

Eeal     Estate;"     Chapter     XXIX,  time  of  the  loss.     *     *     *    For  an 

"Sales  and  Contracts  to  Sell  Per-  injury  to  property  resulting  in   a 

sonalty;"  Chapter  XL,  "Tortious  permanent     diminution     of    value. 

Damage  to  Eealty; "  Chapter  XLI,  compensation     may    be     recovered 

''Tortious    Damage   Pertaining    to  for  such  diminution." — Sedg.  Dam. 

Personalty."  (9th  ed.)  §40.     See  Sutherland  on 

"For  an  injury  to  property  re-  Damages,  §§12,  79,  100. 
suiting  in  its  total  loss  compensa- 

155 


CHAPTER  XVIII 

Expenses 

72.  In  General. — In  many  cases,  expenditures  made  or 
liabilities  incurred  by  the  plaintiff  because  of  the  de- 
fendant's wrong,  figure  prominently  as  heads  of  dam- 
age. In  contract,  ordinarily  the  measure  of  damages 
is  the  value  of  the  contract  to  the  plaintiff  if  it  had  been 
performed,^  but  sometimes  this  cannot  be  ascertained, 
so  that  it  becomes  necessary,  in  order  to  give  the  plain- 
tiff some  relief,  to  allow  him  the  amount  of  his  expendi- 
tures resulting  as  natural  and  probable  consequences  of 
entering  upon  the  contract  and  lost  because  of  the  breach 
thereof.  In  tort,  expenditures  resulting  proximately 
from  defendant's  wrongful  act,  are  recoverable. 
Throughout  the  study  of  the  subject,  one  must  bear  in 
mind  that  the  expenditure  must  have  been  a  proximate 
result  of  the  wrong,  and  that  it  must  not  have  been  an 
avoidable  consequence.* 

73.  Expenditures  Resulting  from  Breach  of  Contract. 

— When  it  is  not  possible  to  ascertain  the  value  to  the 
plaintiff  of  the  contract  sued  upon,  although  it  has  been 
speciously  contended  that  only  nominal  damages  can  be 
recovered,  the  plaintiff  may  recover  the  amount  of  ex- 
pense by  him  **  legitimately  and  essentially  incurred  for 
the  purpose"  of  performing  plaintiff's  part  of  the  con- 
tract, in  reliance  upon  the  defendant's  performing.^  But 
the  plaintiff  cannot  recover  for  expenses  unreasonably 
incurred  by  him  upon  the  occasion  of  the  breach.  **A 
person  has  no  right  to  put  others  to  an  expense  of  such 

1 — See  Chapter  XXVII.  3— Bernstein    v.    Meech,    (1&91) 

2— See  Chapters  IV  and  V.  130  N.  Y.  354,  29  N.  E.  255. 

156 


EXPENSES  157 

a  nature  as  he  would  not  as  a  reasonable  man  incur  on 
his  own  account. ' '  "*  The  plaintiff  may  recover  expendi- 
tures that  he  is  led  on  by  the  defendant  to  make  after 
defendant's  breach,  for  the  purpose  of  mitigating  the 
loss  occasioned  to  the  plaintiff  by  such  breach.^ 

Expenses  incurred  by  a  buyer  in  an  honest  and  reason- 
able effort  to  minimize  the  effects  of  a  breach  of  warranty 
by  the  seller,  are  an  element  of  damage  in  an  action  for 
the  breach.^ 

Where  a  buyer  wrongfully  refuses  to  accept  goods  pur- 
chased and  shipped  to  him  according  to  terms  of  the 
contract,  the  seller  is  entitled  to  be  reimbursed  for  the 
freight  charges  which  he  has  paid ;  "^  and,  where  such 
breach  occurs  before  shipment  of  goods,  the  seller  may 
recover  for  necessary  cost  of  storage.^ 

74.  Expenditures  Resulting  from  Tort. — Torts  often 
necessitate  the  expenditure  of  money  by  the  plaintiff  for 
the  purpose  of  repairing  the  injury  or  of  avoiding  or 
mitigating  injurious  consequences  of  the  defendant's 
wrong. 

Where  property  is  injured,  the  plaintiff  has  a  right  to 
compensation  for  money  reasonably  expended  in  good 
faith  in  an  effort  to  save  the  property  as  well  as  for  the 
loss  of  the  property  itself,  even  if,  after  all  attempts  to 
save  the  property,  its  loss  is  total,  since  ''plaintiff  is 
entitled  to  a  fair  indemnity  for  his  loss."  It  can  be 
said  of  such  expenditure  that  **it  was  incurred,  not  to 
aggravate,  but  to  lessen  the  amount  for  which  the  de- 

4 — Ward's   Central,   etc.,   Co.   v.  7 — Minneapolis    T!hreshing    Ma- 

Elkins,    (1876)    34    Mich.    439,    22  chine  Co.  v.  McDonald,  (1901)    10 

Am.  Eep.   544.  N.  Dak.  408,  87  N.  W.  993. 

5 — Murphy    v.    McGraw,    (1889)  8— Ellithorpe   Air   Brake   Co.    v. 

74  Mich.   318,   41  N.   W.  917.  Sire,  (1890)  41  Fed.  662;  affirmed, 

6— Kelly  v.  Cunningham,  (1860)  137   U.   S.   579,   34  L.  ed.   801,   11 

36  Ala.  78;   Nye   &  Schneider  Co.  Sup.  Ct.  195. 
V.    Snyder,    (1898)     56    Neb.    754, 
77  N.  W.   118;   Perrine  v.  Serrell, 
(1864)   30  N.  J.  Law  454. 


158  LAW  OF  DAMAGES 

fendants  might  be  held  liable.  Had  it  proved  successful, 
they  would  have  had  the  benefit  of  it.  As  it  turned  out 
otherwise,  it  is  but  just  *  *  *  that  they  should  sus- 
tain the  loss."^ 

In  tort,  one  may  recover  for  expenditures  reasonably 
made  for  the  purpose  of  mitigating  the  effects  of  the 
wrong.  ^*^ 

Where  property  of  the  plaintiff  has  been  wrongfully 
taken  and  detained  by  the  defendant,  the  plaintiff  has  a 
right  to  reimbursement  of  the  money  expended  in  a  rea- 
sonable and  bona  fide  attempt  to  find  the  property.*^ 

In  cases  of  personal  injury,  on  the  same  general  prin- 
ciple, the  plaintiff  has  a  right  to  recover  the  amount  of 
all  expenses  incurred  reasonably  and  in  good  faith  in 
order  to  repair  the  injury  inflicted  by  the  defendant  or 
to  avoid  injurious  consequences  thereof.  Such  expenses 
are:  physicians'  fees,  nurses'  fees,  hospital  bills,  and 
tlruggists'  bills. 

Besides  showing  that  expenditures  of  such  a  nature 
were,  in  general,  necessary,  the  plaintiff  must  prove  two 
things:  ''First,  that  he  had  paid  or  become  liable  to 
pay  a  specified  amount;  and,  second,  that  the  charges 
made  were  the  usual  and  reasonable  charges  for  serv- 
ices of  that  nature.  He  could  recover  no  more  than  the 
amount  which  he  had  paid  or  become  liable  to  pay,  even 
if  it  was  less  than  the  usual  and  reasonable  charge  for 
such  services;  and,  on  the  other  hand,  he  could  not  re- 
cover more  than  such  usual  and  reasonable  charge  even 
if  he  had  paid  more.'"^ 

9— Watson  v.  Bridge,   (1837)    14  10— Ocean  S.  S.  Co.  v.  Williams, 

Me.    201,    31    Am.    Dec.    49;    cited  (1882)   69  Ga.  251;  Bolton  v.  Vel- 

with    approval   in   Ellis   v.   Hilton,  lines,   (1897)   94  Va,  393,  26  S.  E. 

(1889)     78    Mich.    150,    43    N.    W.  847,  64  Am.  St.  Rep.  737. 

1048,  6  L.  R.  A.  454,   18  Am.  St.  11— Mitchell    v.    Burch,     (1871) 

Rep.  438.     Both  these  actions  were  ;J6  Ind.  529. 

brought  for  injuries  to  horses,  after  12 — Schmitt    v.    Kurrus,     (1908) 

plaintiffs  had  attempted  their  cure.  234   111.   578,   85   N.   E.   261. 


EXPENSES  159 

CASE   ILLUSTRATIONS 

1.  Defendants  broke  their  contract  not  to  sell  certain  patent 
medicine  in  certain  territory  assigned  to  plaintiffs.  Damages 
cannot  be  awarded  to  cover  plaintiffs'  cost  of  extra  advertising 
considered  necessary  to  protect  their  interests  from  defendants' 
wrongful  competition,  nor  for  the  amount  lost  by  reason  of  a 
reduction  in  price  deemed  necessary  in  order  to  counteract  the 
effects  of  the  violation  of  the  contract  by  defendants.^^ 

2.  A  agreed  to  transport  cord  wood  for  B,  but  broke  his 
agreement.  There  was  no  evidence  that  the  wood  was  ever  de- 
livered to  A.  The  wood  was  later  washed  away  by  a  freshet  and 
lost.  Held,  that  it  would  have  been  erroneous  to  instruct  the 
jury  that  plaintiff  could  recover  "whatever  he  may  have  ex- 
pended in  the  recovery  of  the  wood  washed  away,  if  the  jury 
should  believe  that  the  wood  would  not  have  washed  away  had 
the  defendants  kept  their  contract."  Such  damage  was  not 
shown  to  have  arisen  naturally  from  the  breach,  nor  was  it  shown 
to  have  been  within  the  contemplation  of  the  parties  as  the 
probable  result  of  a  breach,  ^^ 

3.  Gas  works  of  defendant  injured  plaintiff's  well,  so  that 
he  could  not  use  the  water  for  drinking  purposes.  Held,  that 
evidence  was  admissible  to  show  the  cost  to  plaintiff  of  furnish- 
ing a  sufficient  quantity  of  water  equally  pure  with  that  which 
supplied  him  from  his  well  before  its  injury  by  the  gas  works,^^ 

4.  Plaintiff's  horse  was  injured  by  defendant.  Held  that, 
in  assessing  damages,  it  was  proper  to  consider  the  sums  ex- 
pended by  plaintiff  for  the  treatment  of  the  injured  animal  and 
for  the  hire  of  a  horse  to  take  its  place  while  under  treatment.^  ^ 

13— Fowle    V.    Park,    (1892)    48  Graham,  (1862)  28  111.  73,  81  Am. 

Fed.  789.  Dec.    263. 

14— Slaughter        v.        Denmead,  16— Hutton  v.  Murphy,  (1894)  29 

(1892)   88  Va.  1019,  14  S.  E.  833.  N.  Y.  Supp.  70,  9  Misc.  151. 

15 — Ottawa    Gaa    Light    Co,    v. 


CHAPTER  XIX 
Profits  and  Bargains 

75.  Profits  that  defendant's  wrong  prevents  plaintiff 
from  making,  may  be  recovered,  if  they  can  be  shown 
in  such  manner  as  to  bear  the  tests  of  the  rules  of  causa- 
tion and  certainty,  as  may  any  other  element  of  damages. 
This  is  so  both  in  contract  and  in  tort.  Although  this  is 
clearly  just  and  is  correct  on  principle,  it  has  not  always 
been  the  rule.^ 

In  contract,  if  the  parties  have,  at  the  time  of  contract- 
ing, contemplated  profits,  the  amount  of  such  profits  lost 
by  reason  of  defendant's  breach,  should  be  assessed 
against  him  as  damages ;  ^  and,  in  tort,  if  a  loss  of  profits 
proximately  results  from  defendant's  tortious  act,  such 
profits  can  be  recovered ;  ^  pro'sdded,  however,  in  all  cases, 
that  the  requirement  of  certainty  be  met. 

There  are,  however,  many  cases  in  which  the  loss  of 
profits  is  too  remote  a  consequence  of  defendant 's  wrong- 
ful act,  or  in  which  the  fact  of  the  loss  of  the  profits  or 
the  amount  thereof  is  too  uncertain  to  constitute  any 
basis  for  a  recovery  of  substantial  damages.  **It  is  not 
to  be  denied  that  there  are  profits  or  gains  derivable  from 
a  contract  which  are  uniformly  rejected  as  too  contin- 
gent and  speculative  in  their  nature,  and  too  dependent 
upon  the  fluctuation  of  markets  or  the  chances  of  busi- 
ness, to  enter  into  a  safe  or  reasonable  estimate  of  dam- 

1 — Early  English  and   American  Baxendale,    (1854)   9  Exch.  341,  5 

holdings    were    to   the    effect    that  E.  R.  C.  502. 

profits     could     not     be     recovered  3 — Allison     v.    Chandler,    (1863) 

either    in    contract    or    in    tort. — 8  11    Mich.    542;    Paul    v.    Cragnaz, 

R.  C.  L.  501.  (1900)    25   Nev.   293,  60   Pac.   983, 

2— Dennis  v.  Maxfield,  (1865)  10  47   L.  R.  A,  540. 
Allen  (Mass.)  138.    See  Hadley  v. 

160 


PROFITS  AND  BARGAINS  161 

ages.  Thus,  any  supposed  successful  operation  the  party 
might  have  made,  if  he  had  not  been  prevented  from 
realizing  the  proceeds  of  the  contract  at  the  time  stipu- 
lated, is  a  consideration  not  to  be  taken  into  the  estimate. 
Besides  the  uncertain  and  contingent  issue  of  such  an 
operation  in  itself  considered,  it  has  no  legal  or  necessary 
connection  with  the  stipulations  between  the  parties,  and 
cannot  therefore  be  presumed  to  have  entered  into  their 
consideration  at  the  time  of  contracting.  It  has  accord- 
ingly been  held  that  the  loss  of  any  speculation  or  enter- 
prise in  which  a  party  may  have  embarked,  relying  on  the 
proceeds  to  be  derived  from  the  fulfillment  of  an  existing 
contract,  constitutes  no  part  of  the  damages  to  be  recov- 
ered in  case  of  breach.  So  a  good  bargain  made  by  a 
vendor,  in  anticipation  of  the  price  of  the  article  sold, 
or  an  advantageous  contract  of  resale  made  by  a  vendee, 
confiding  in  the  vendor's  promise  to  deliver  the  article, 
are  considerations  always  excluded  as  too  remote  and  con- 
tingent to  affect  the  question  of  damages.     *     *     * 

*  *  When  the  books  and  cases  speak  of  the  profits  antici- 
pated from  a  good  bargain  as  matters  too  remote  and 
uncertain  to  be  taken  into  the  account  in  ascertaining  the 
true  measure  of  damages,  they  usually  have  reference  to 
dependent  and  collateral  engagements  entered  into  on  the 
faith  and  in  expectation  of  the  perfonnance  of  the  prin- 
cipal contract.  The  performance  or  non-performance  of 
the  latter  may  and  doubtless  often  does  exert  a  material 
influence  upon  the  collateral  enterprises  of  the  party ;  and 
the  same  may  be  said  as  to  his  general  affairs  and  busi- 
ness transactions.  But  the  influence  is  altogether  too  re- 
mote and  subtile  to  be  reached  by  legal  proof  or  judicial 
investigation.  And  besides,  the  consequences,  when  in- 
jurious, are  as  often  perhaps  attributable  to  the  indiscre- 
tion and  fault  of  the  party  himself,  as  to  the  conduct  of 
the  delinquent  contractor.  His  condition,  in  respect  to 
the  measure  of  damages,  ought  not  to  be  worse  for  having 
failed  in  his  engagement  to  a  person  w^hose  affairs  were 

Bauer  Dam. — 11 


162  LAW  OF  DAJVIAGES 

embarrassed,  than  if  it  had  been  made  with  one  in  pros- 
perous or  affluent  circumstances.     *     *     * 

''But  profits  or  advantages  which  are  the  direct  or  im- 
mediate fruits  of  the  contract  entered  into  between  the 
parties,  stand  upon  a  different  footing.  These  are  part 
and  parcel  of  the  contract  itself,  entering  into  and  con- 
stituting a  portion  of  its  very  elements ;  something  stipu- 
lated for,  the  right  to  the  enjoyment  of  which  is  just  as 
clear  and  plain  as  to  the  fulfilment  of  any  other  stipula- 
tion. They  are  presumed  to  have  been  taken  into  con- 
sideration and  deliberated  upon  before  the  contract  was 
made,  and  formed  perhaps  the  only  inducement  to  the  ar- 
rangement. The  parties  may  indeed  have  entertained 
different  opinions  concerning  the  advantages  of  the  bar- 
gain, each  supposing  and  believing  that  he  had  the  best 
of  it;  but  this  is  mere  matter  of  judgment  going  to  the 
formation  of  the  contract,  for  which  each  has  shown  him- 
self willing  to  take  the  responsibility,  and  must  therefore 
abide  the  hazard. 

*'Such  being  the  relative  position  of  the  contracting 
parties,  it  is  difficult  to  comprehend  why,  in  case  one 
party  has  deprived  the  other  of  the  gains  or  profits  of 
the  contract  by  refusing  to  perform  it,  this  loss  should 
not  constitute  a  proper  item  in  estimating  the  damages. 
To  separate  it  from  the  general  loss  would  seem  to  be 
doing  violence  to  the  intention  and  understanding  of  the 
parties,  and  severing  the  contract  itself. ' '  * 

The  requiring  of  certainty  excludes  many  profits  from 
consideration.  ''Profits  are  not  excluded  from  recovery, 
because  they  are  profits ;  but  when  excluded,  it  is  on  the 
ground  that  there  are  no  criteria  by  which  to  estimate 
the  amount  with  the  certainty  on  which  the  adjudications 
of  courts,  and  the  findings  of  juries  should  be  based.^  The 

4 — Masterton  v.  Mayor  of  Brook-  Lack  of  compliance  with  rules  of 

lyn,   (1845)    7  Hill   (N.  Y.)   61,  42  causation    is    just    as    effective  in 

Am.  Dec.  38.  barring   a  recovery  as  is  lack  at 

5 — This  statement  is  too  narrow.  certainty. 


PROFITS  AND  BARGAINS  163 

amount  is  not  susceptible  of  proof.  In  3  Suth.  Dam.  157, 
the  author  discriminatingly  observes :  *  When  it  is  advis- 
edly said  that  profits  are  uncertain  and  speculative,  and 
cannot  be  recovered,  when  there  is  an  alleged  loss  of  them 
it  is  not  meant  that  profits  are  not  recoverable  merely  be- 
cause they  are  such,  nor  because  profits  are  necessarily 
speculative,  contingent  and  too  uncertain  to  be  proved; 
but  they  are  rejected  when  they  are  so ;  and  it  is  probable 
that  the  inquiry  for  them  has  been  generally  proposed 
when  it  must  end  in  fruitless  uncertainty;  and  therefore 
it  is  more  a  general  truth  than  a  general  principle,  that  a 
loss  of  profits  is  no  ground  on  which  damages  can  be 
given.'  Wlien  not  allowed  because  speculative,  con- 
tingent, and  uncertain,  their  exclusion  is  founded  by  some 
on  the  ground  of  remoteness,  and  by  others,  on  the  pre- 
sumption that  they  are  not  in  the  legal  contemplation 
of  the  parties."^ 

In  allowing  profits  to  a  jeweler  tortiously  ejected  from 
the  store  which  he  occupied,  the  Michigan  court,  empha- 
sizing the  fact  that  the  allowance  of  profits  in  a  tort  case 
is  less  limited  than  in  contract  cases,  the  agreement  and 
contemplation  of  the  parties  having  no  place  in  cases  of 
tort,  said  in  regard  to  certainty :  '  *  Since,  from  the  nature 
of  the  case,  the  damages  cannot  be  estimated  with  cer- 
tainty, and  there  is  a  risk  of  giving  by  one  course  of  trial 
less,  and  by  the  other  more  than  a  fair  compensation, — 
to  say  nothing  of  justice, — does  not  sound  policy  require 
that  the  risk  should  be  thrown  upon  the  wrongdoer  in- 
stead of  the  injured  party?  However  this  question  may 
be  answered,  we  cannot  resist  the  conclusion  that  it  is 
better  to  run  a  slight  risk  of  giving  somewhat  more  than 
actual  compensation,  than  to  adopt  a  rule  which,  under 
the  circumstances  of  the  case,  will,  in  all  reasonable  prob- 
ability, preclude  the  injured  party  from  the  recovery  of 
a  large  proportion  of  the  damages  he  has  actually  sus- 

fi — Bn'jrliam    v.    Carlisle,    (1884") 

T'^    M.n.   2t".   Hfi   Am.   Rep.   28. 


164  LAW  OF  DAJyiAGES 

tained  from  the  injury,  though  the  amount  thus  excluded 
cannot  be  estimated  with  accuracy  by  a  fixed  and  certain 
rule.  Certainty  is  doubtless  very  desirable  in  estimating 
damages  in  all  cases;  and  where,  from  the  nature  and 
circumstances  of  the  case,  a  rule  can  be  discovered  by 
which  adequate  compensation  can  be  accurately  meas- 
ured, the  rule  should  be  applied  in  actions  of  tort  as  well 
as  in  those  upon  contract.  Such  is  quite  generally  the 
case  in  trespass  and  trover  for  the  taking  or  conversion 
of  personal  property,  if  the  property  (as  it  generally  is) 
be  such  as  can  be  readily  obtained  in  the  market  and  has 
a  market  value.  But  shall  the  injured  in  an  action  of  tort, 
which  may  happen  to  furnish  no  element  of  certainty,  be 
allowed  to  recover  no  damages  (or  merely  nominal)  be- 
cause he  cannot  show  the  exact  amount  with  certainty, 
though  he  is  ready  to  show,  to  the  satisfaction  of  the  jury, 
that  he  has  suffered  large  damages  by  the  injury?  Cer- 
tainty, it  is  true,  would  thus  be  attained ;  but  it  would  be 
the  certainty  of  injustice.  And,  though  a  rule  of  certainty 
may  be  found  which  will  measure  a  portion,  and  only  a 
portion,  of  the  damages,  and  exclude  a  very  material  por- 
tion, which  it  can  be  rendered  morally  certain  the  injured 
party  has  sustained,  though  its  exact  amount  cannot  be 
measured  by  a  fixed  rule ;  here  to  apply  any  such  rule  to 
the  whole  case,  is  to  misapply  it ;  and  so  far  as  it  excludes 
all  damages  which  cannot  be  measured  by  it  perpetrates 
positive  injustice  under  the  pretense  of  administering 
justice. ' '  '^ 

Where  the  loss  of  profits  in  a  business  is  an  element  of 
damage  in  a  personal  injury  case,  the  fact  that  plaintiff 
has  kept  no  itemized  accounts  of  the  costs  and  receipts 
of  the  business,  does  not  render  the  amount  of  such  loss 
so  uncertain  as  to  be  necessarily  not  recoverable.  If  there 
are  no  accounts,  the  plaintiff  *s  estimate  of  profits  is  ad- 

7— Allison    V.    Chandler,    (1863) 
11  Mich.  542. 


PROFITS  AND  BARGAINS  165 

missible  in  evidence.  The  absence  of  accounts  goeg  only 
to  the  weight  of  the  evidence.* 

It  must  be  remembered  that,  on  principle  and  accord- 
ing to  the  weight  of  authority,  the  plaintiff  can  recover 
for  loss  of  profits,  whether  in  contract  or  in  tort,  if  he  can 
meet  the  usual  requirements  of  causation  and  certainty.® 
So,  one  employed  for  a  definite  period  to  represent  an- 
other, with  compensation  to  consist  of  commissions  upon 
business  done,  has  a  right  to  recover  for  loss  of  such 
profits  as  must,  with  reasonable  certainty,  have  accrued 
to  him  but  for  the  wrongful  termination  of  the  contract 
by  the  other  party.^°  An  agent  employed  for  a  definite 
period  to  write  insurance  has  a  right,  upon  wrongful 
termination  of  the  contract  by  the  insurance  company,  to 
show  the  amount  of  probable  renewals  on  existing  poli- 
cies, on  which  he  should  receive  commissions  and  also 
to  show  the  amount  of  commissions  on  such  policies  as 
plaintiff  would  probably  have  written  during  the  remain- 
ing portion  of  the  period  of  employment,  as  indicated  by 
the  amount  of  business  actually  done  by  the  agent  suc- 
ceeding him,  the  amount  of  business  done  by  himself 
previously  to  dismissal,  and  the  number  and  character  of 
"prospects."  ^^ 

In  contract,  the  fact  that  prospective  profits  are  hard 
to  compute  or  necessarily  rather  speculative,  does  not 
bar  them,  if  the  parties  contemplated  them.^^ 

8 — Comstock  v.  Connecticut  By.  mann,    (1898)    99   Wis.   251,   74  N. 

etc.,    Co.,    (19Q4)    77    Conn.    65,   58  W.   785. 

Atl.  465.  10 — McGinnis  v.  Studebaker  Cor- 

9 — Wells  V.  National  Life  Ass'n,  poration,    (1915)    75  Ore.  519,   146 

(1900)    99    Fed.    222,   39   C.    C.   A.  Pac.  825,  147  Pac.  525,  Ann.   Cas. 

476,    53    L.    R.    A.    33;    Dennis    v.  1917B  1190. 

Maxfield,  (1865)   10  Allen   (Mass.)  11— Wells      v.      National      Life 

138;     Emerson     v.    Pacific     Coast,  Ass'n,    (1900)    99  Fed.  222,   39   C. 

etc..  Packing  Co.,  (1905)  96  Minn.  C.  A.  476,  53  L.  R.  A.  33. 

1,  104  N.  W.  573,  1  L.  R.  A.   (N.  12— Dennis    v.    Maxfield,    (1865) 

S.)  445,  6  Ann.  Cas.  973,  113  Am.  10    Allen    (Mass.)    138, 
St.  Rep.  603;  Schumaker  v.  Heine- 


166  LAW  OF  DAMAGES 

76.  Bargains. — Closely  related  to  and  somewhat  inter- 
mingled with  profits  are  bargains  lost  by  reason  of  de- 
fendant's breach  of  contract.  Often  an  important, — 
sometimes  the  sole, — element  of  damage  in  a  contract 
case  is  the  loss  of  a  bargain.  If  the  plaintiff  has  a  con- 
tract under  which  the  defendant  is  to  supply  him  an 
article  at  a  stated  price,  which  is  less  than  the  market 
price  at  the  time  and  place  of  delivery,  and  defendant 
breaks  the  contract,  the  plaintiff  has  a  right  to  be  com- 
pensated for  the  bargain, — the  financial  advantage, — 
which  he  has  lost.  So  it  is  in  any  case  of  breach  of  con- 
tract in  which  the  plaintiff  has  suffered  the  loss  of  a 
bargain  contemplated  by  the  parties.^* 

CASE   ILLUSTRATIONS 

1.  Defendant  agreed  to  constitute  plaintiffs  its  sole  agents 
for  the  sale  of  at  least  85  per  cent  of  its  entire  pack  of  fish  of 
all  kinds,  for  two  years.  At  the  end  of  one  year,  defendant 
repudiated  the  contract.  Held,  that  profits  might  be  recovered. 
"Profits  were  necessarily  within  the  actual  contemplation  of 
the  parties.  They  are,  therefore,  proper  basis  for  award  of 
damages.  *  *  »  Deep  sea  fishing  is  not  more  speculative 
than  mining,  for  breach  of  contract  with  respect  to  which  future 
profits  have  been  allowed  as  damages.  *  *  »  Nor  is  there 
any  uncertainty  as  to  the  existence,  but  only  as  to  the  extent, 
of  the  profits.  "14 

2.  A  manufacturer  failed  to  fill  orders  for  a  wholesaler  ac- 
cording to  contract.  Held,  that  the  wholesaler  cannot  recover 
for  loss  of  profits  on  sales  which  plaintiff  might  have  made  if 
the  contract  had  been  fulfilled,  in  the  absence  of  notice  to  the 
manufacturer  unless  such  loss  was  in  the  contemplation  of  the 
parties  as  a  probable  result  of  a  breach  of  contract.  ^^^ 

13 — Dustan  v.  Mc Andrew,  (1870)  15 — Holloway  v.   White-Dunham 

44  N.  Y.  72.  Shoe  Co.,  (1906)   151  Fed.  216,  80 

14 — Emerson  v.  Pacific   Coast  &       C,  C.  A.  568,  10  L.  B,  A.   (N.  S.) 
Norway    Packing    Co.,    (1905)    96      704. 
Minn.  1,  104  N.  W.  573,  1  L.  R.  A. 
(N.  S.)   445,  6  Ann.  Cas.  973,  113 
Am.  St.  Rep.  603. 


CHAPTER  XX 

Physical  Pain 

77.  Pain  a  Non-Pecuniary  Element  of  Damage — Dam- 
ages to  Be  Reasonable. — In  actions  for  personal  injuries, 
a  very  common  element  of  damage,  for  which,  if  it  be 
a  proximate  result  of  defendant's  wrong,  compensation 
is  always  allowed,  is  physical  pain.^  Pain  and  suffering 
cannot  be  exactly  measured  in  terms  of  money,  and  the 
only  rule  governing  the  allowance  of  damages  for  such 
an  element,  is  that  it  must  be  reasonable.  ' '  This  should 
not  be  estimated  according  to  a  sentimental  or  fanciful 
standard,  but  in  a  reasonable  manner,  as  it  is  wholly  ad- 
ditional to  a  pecuniary  compensation  afforded  by  the 
first  and  third  items  (expenditures  for  cure  and  loss  of 
earning  power)  that  enter  into  the  amount  of  the  verdict 
in  such  cases.  *  *  *  Some  allowance  has  been  held 
to  be  proper ;  but,  in  answer  to  the  question,  'How  much!' 
the  only  reply  yet  made  is  that  it  shall  be  reasonable  in 
amount.  "2  Probably  nowhere  is  the  restriction  of  a 
principle  of  reasonableness  more  needed  than  in  this  in- 
stance, and  probably  nowhere  are  the  bounds  of  rea- 
sonableness more  indistinct  and  unsatisfactory;  and  this 
is  necessarily  so,  from  the  immeasurable  nature  of  phy- 
sical pain.  The  question  of  price  as  a  compensation  for 
plaintiff's  suffering  has  no  place  in  these  cases;  and  **to 
suggest  the  idea  of  price  to  be  paid  to  a  volunteer  as  an 

1 — Peoria  Bridge  Ass'n  v.  Loom-  Pennsylvania  E.  Co.,  (1896)  177  Pa. 

i8,  (1858)   20  111.  235,  71  Am.  Dee.  1,  35  Atl.  191,  55  Am.  St.  705. 
263;  Lake  Shore  &  M.  S.  Ey.  Co.  2— Goodhart  v.  Pennsylvania  E. 

V.  Frantz,   (1889)    127  Pa.  297,  18  Co.,  snpra. 
Atl.  22,  4  L.  E.  A.  389;  Goodhart  v. 

167 


168  LAW  OF  DAIMAGES 

approximation  to  the  money  value  of  suffering,  is  to 
give  loose  rein  to  sympathy  and  caprice. ' '  ^ 

CASE   ILLUSTRATIONS 

1.  Plaintiff  was  negligently  struck  and  seriously  injured  by 
defendant's  ear.  Pain,  physical  and  mental,  is  an  element  of 
damage.^ 

2.  A  railway  company  negligently  put  an  employee  to  work 
at  repairs  between  two  cars,  without  the  proper  signal  to  indi- 
cate that  he  was  there.  Another  car  was  driven  against  the  car 
standing  next  to  the  one  on  which  the  employee  was  at  work, 
greatly  injuring  the  employee's  hand.  Recovery  can  be  had  for 
pain.s 

3— Baker  v.  Pennsylvania  R.  Co.,  (1894)   153  111.  379,  39  N.  E.  119. 

(1891)    142   Pa.    503,    21   Atl.   979,  5— Richmond    &    D.    Ry.    Co.    v. 

12  L.  R.  A.  698.  Norment,   (1887)    84  Va.  167,  4  S. 

4— Central   Ry.    Co.    v.   Serfaas,  E.  211,  10  Am.  St.  Bep.  827. 


CHAPTER  XXI 

Mental.  Suffering 

78.  In  General. — Damages  for  mental  suffering  may 
properly  be  allowed  in  many  cases.  There  are  sometimes 
so  many  questions  involved  in  the  decision  whether  to 
make  any  allowance  in  damages  for  such  suffering,  that 
the  determination  of  the  matter  is  very  complex. 

79.  Mental  Suffering  as  an  Element  of  Damage  in  Con- 
tract.— The  common  law  is  held  not  to  include  mental 
suffering  as  an  element  of  damage  in  cases  of  breach  of 
contract,  unless  such  suffering  is  a  natural  and  probable 
result  of  a  breach  of  the  contract — such  a  result  as  might 
well  have  been  anticipated  by  the  parties,  and,  at  the 
same  time,  a  proximate  result.^  This  is  no  more  than  an 
application  of  the  general  rule  as  to  the  assessment  of 
any  damages  in  contract.  There  are  comparatively  few 
contract  cases  in  which,  under  such  a  rule,  damages  for 
mental  suffering  can  be  allowed.  The  mere  disappoint- 
ment occasioned  by  the  breach  of  an  ordinary  business 
contract  cannot  be  allowed  as  an  element  of  damage. 

1 — Birmingham   Waterworks   Co.  App.  580,  58  So.  931,  for  breach  orf 

V.  Vinter,  (1910)   164  Ala.  490,  51  a  liveryman's  contract  in  connec- 

So.  356.    But  see  Lewis  v.  Holmes,  tion  with  a  wedding.  See  also  Tax- 

(1903)   109  La.  1030,  34  So.  66,  61  icab  Co.  v.  Grant,  (Ala.  App.  1911) 

L.  R.  A.   274,  where   damages   for  57  So.  141;  and  Central  of  Georgia 

mental  suffering  were  allowed  for  Ey.   Co.  v.  Knight,    (1911)    3   Ala. 

breach  of  contract  to  make  plain-  App.   436,   57   So.    253.     In   Aaron 

tiff's     wedding     trousseau.       This  v.    Ward,    (1911)    203    N.    Y.    351, 

case,  horwever,  was  decided  under  96  N.  E.  736,  mental  suffering  was 

the  Louisiana  Civil  Code,  and  so  is  compensated  for  in  a  case  of  breach 

of    no    authority    on    the    common  of    contract    by    revocation    of    a 

law.     Such  damages  were  allowed  bathhouse  ticket, 
in  Browning  v.  Fies,  (1912)  4  Ala. 

169 


170 


LAW  OF  DAIVIAGES 


**Each  case  of  this  description  must  be  decided  with 
reference  to  the  circumstances  peculiar  to  it ;  but  it  may 
be  laid  down  as  a  rule,  that  generally  in  actions  upon 
contracts  no  damages  can  be  given  Avhich  cannot  be  stated 
specifically,  and  that  the  plaintiff  is  entitled  to  recover 
whatever  damages  naturally  result  from  the  breach  of 
contract,  but  no  damages  for  the  disappointment  of  mind 
occasioned  by  the  breach  of  contract. ' '  ^  The  breach  of 
some  contracts,  however,  may  give  rise  to  a  right  to  dam- 
ages for  mental  suffering;  such  as,  a  promise  to  marry,^ 
a  contract  to  transmit  and  deliver  a  telegram  announcing 
death*  (some  cases  contra^)  or  sickness,  a  carrier's  con- 
tract to  transport  a  corpse,®  and  a  contract  to  keep  a 
corpse  safe  or  to  prepare  it  for  burialJ  Contrary  to  the 
usual  rule,  it  has  been  held  in  Texas  that  damages  for 
mental  suffering  may  be  given  for  breach  of  an  ordinary 


S—PoUock,  C.  B.,  in  Hamlin  v. 
The  Great  Northern  Ry.  Co.,  (1856) 
1  Hurl.  &  N.  408,  156  Eng.  Repr. 
1261. 

3 — ^Berry  v.  Da  Coata,  (1866)  L. 
R.  1  C.  P.  331,  citing  Smith  v. 
Woodfine,  (1857)  1  C.  B.  (N.  S.) 
660,  which  cites  Sedgwick  on  Dam- 
ages (2d  ed.)  p.  368.  Sedgwick 
cites  Wells  v.  Padge+t,  (1850)  8 
Barb,  (N.  Y.)  323,  and  other  cases. 

4 — Western  Union  Tel.  Co.  v. 
Hill,  (1909)  163  Ala.  18,  50  So. 
248;  Mentzer  v.  Western  Union 
Tel.  Co.,  (1895)  93  la.  752,  62  N. 
W.  1,  28  L.  R.  A.  72,  57  Am.  St. 
Rep.  294;  Stuart  v.  Western  Union 
Tel.  Co.,  (1885-6)  66  Tex.  580,  18 
S.   W.    351,   59   Am.    Rep.    623. 

5 — Connell  v.  Western  Union  Tel. 
Co.,  (1893)  116  Mo.  34,  22  S.  W. 
345,  20  L.  R.  A.  172,  38  Am.  St. 
Rep.  575.  Recent  cases  hold  that, 
as  to  interstate  telegrams,  the  fed- 
eral rule  applies  under  recent  fed- 
eral statutes,  80  that  damages  for 


mental  suffering  are  not  recover- 
able. Western  U.  Tel.  Co.  v.  Haw- 
kins, (Ala.  1917)  73  So.  973;  West- 
ern U.  Tel.  Co.  V.  Showers,  (Miss. 
1916)    73  So.  276. 

6 — ^Louisville  &  N.  R.  Co.  v.  Hull, 
(1902)  113  Ky.  561,  68  S.  W.  433, 
57  L.  R.  A.  771;  Hale  v.  Bonner, 
(1891)  82  Tex.  33,  17  S.  W.  605, 
14  L.  R.  A.  336,  27  Am.  St.  Rep. 
850. 

7 — Compensation  for  mental  suf- 
fering was  allowed  in  a  case  where 
defendant,  an  undertaker,  had 
broken  his  contract  to  deliver  a 
certain  coflBn  and  robe,  by  deliv- 
ering only  a  box,  and  that  too 
small,  jamming  the  corpse  into  it, 
and  furnishing  no  robe.  J.  E.  Dunn 
&  Co.  V.  Smith,  (Tex.  Civ.  App. 
1903)  74  S.  W.  576.  For  such  al- 
lowance for  breach  of  contract  to 
keep  corpse  safely,  see  Renihan 
V.  Wright,  (1890)  125  Ind.  536, 
25  N.  E.  822,  9  L.  R.  A.  514,  21 
Am.   St.    Rep.    249.     In   Lindh    v. 


MENTAL  SUFFERING 


171 


contract  of  a  passenger  carrier ;  ®  but  it  has  been  more 
recently  held,  by  the  Texas  Court  of  Civil  Appeals,  that 
such  damages  are  recoverable  only  if  the  probability  of 
such  suffering  was  made  known  to  the  railroad  company 
at  the  time  of  the  making  of  the  contract.^  Usually, 
unless  a  breach  of  a  carrier's  contract  has  resulted  in  a 
personal  physical  injury  to  the  plaintiff,  there  can  be  no 
recovery  thereon  for  mental  suffering.^^ 

It  is  to  be  noticed  that  every  one  of  these  contracts  for 
the  breach  of  which  mental  suffering  is  commonly  allowed 
as  an  element  of  damage,  is  one  of  which  the  breach  may 
well  have  been  expected  to  bring  such  suffering  as  a 
result.  In  such  cases,  mental  suffering  is  a  probable 
result  of  a  breach, — indeed,  in  such  cases  as  those  in- 
volving death  messages  and  corpses,  the  only  really  dam- 
aging result  to  be  expected;  and  the  parties  to  the  con- 
tract, as  reasonably  prudent  persons,  may  be  said  to  have 


Great  Northern  Ey.  Co.,  (1906) 
99  Minn.  408,  109  N.  W.  823,  7 
L.  R.  A.  (N.  S.)  1018,  defendant 
company  had  negligently  and  wil- 
fully permitted  casket  and  corpse 
of  deceased  wife  of  plaintiff  to 
remain  in  the  rain,  by  which  the 
casket  was  soiled  and  ruined  and 
the  corpse  mutilated  and  disfigured. 
Recovery  for  mental  suffering  was 
allowed.  This  ease  follows  Larson 
V.  Chase,  (1891)  47  Minn.  307,  50 
N.  W.  238,  14  L.  R.  A.  85,  28 
Am.  St.  Rep.  370,  in  which  the 
opinion  is  well  reasoned  but  is 
rendered,  however,  in  a  case  purely 
in  tort.  But  see  Hall  v.  Jackson, 
(1913)  24  Colo.  App.  225,  134  Pac. 
151,  refusing  to  allow  damages  for 
mental  suffering,  where  defendant, 
an  undertaker,  had  so  negligently 
prepared  the  body  of  plaintiff's 
husband  for  shipment,  that  it 
reached   its   destination   much   de- 


composed. The  court  grounded  its 
decision  upon  the  facts  that  de- 
fendant was  not  in  a  public  call- 
ing and  that  his  wrong  was  not 
wanton  or  wilful. 

8 — St.  Louis,  A.  &  T.  Ry.  Co. 
V.  Berry,  (1890)  4  Wills.  Civ.  C. 
(Tex.)  166,  15  S.  W.  48,  holds  that 
damages  for  mental  suffering  are 
recoverable  for  breach  of  contract 
ta  carry  passengers  and  baggage. 

9 — ^Jones  v.  Texas,  etc.,  R.  Co., 
(1900)  23  Tex.  Civ.  App.  65,  55  S. 
W.  371. 

10 — Hamlin  v.  The  Great  North- 
ern Ry.  Co.,  (1856)  1  H.  &  N.  408, 
156  Eng.  Repr.  1261;  Wilcox  v. 
Richmond  &  D.  R.  Co.,  (1892)  52 
Fed.  264,  3  C.  C.  A.  73,  8  U.  S.  App. 
118,  17  L.  R.  A.  804;  Trigg  v.  St. 
Louis,  etc.,  R.  Co.,  (1881)  74  Mo. 
147,  41  Am.  Rep.  305;  Walsh 
v.  Chicago,  etc.,  Ry.  Co.,  (1877) 
42   Wis.   23. 


172  LAW  OF  DAMAGES 

had  such  consequences  in  contemplation  at  the  time  of 
making  the  contract.  Since,  in  such  cases,  no  important 
element  of  damage  except  mental  suffering  can  be  said 
to  have  been  contemplated,  the  aggrieved  party  would  be 
without  any  effective  remedy  if  this  were  not  allowed  as 
an  element  of  damage.  Where  damages  for  mental  suf- 
fering have  been  allowed  for  breach  of  contract,  the  tor- 
tious element  of  the  breach  has  sometimes  been  assigned 
as  a  reason  for  such  allowance ;  "  and  this  may  be  correct 
on  principle  in  the  case  of  a  carrier's  contract  or  a  breach 
of  contract  to  marry;  but  it  is  unnecessary  to  rely  upon 
this  reason,  for,  in  all  the  contract  cases  in  which  mental 
suffering  has  been  compensated  for  as  an  element  of 
damage,  such  suffering  was  merely  a  natural  and  prob- 
able result  of  the  breach,  within  the  contemplation  of  the 
parties  at  the  time  the  contract  was  made,  and  therefore 
allowable  as  an  element  of  damage  in  accordance  with 
the  general  rules  of  the  law  of  contracts.  Absence  of 
wantonness  and  wilfulness,  or  the  absence  of  malice,  has 
also  been  relied  upon  as  a  reason  for  not  giving  damages 
for  mental  suffering  upon  breach  of  contract.^^  On  prin- 
ciple, it  would  seem  that  the  tortious  or  non-tortious 
nature  of  the  breach  should  not  be  the  guiding  star,  but 
rather  that  the  controlling  element  should  be  the  fact 
that  the  parties  should  or  should  not  have  contemplated 
mental  suffering  as  a  probable  consequence  of  a  breach. 
Some  courts  have  very  properly  held  that,  if  mental  suf- 
fering was  such  a  result  of  the  breach  as  should  have 
been  contemplated  by  the  parties  at  the  time  of  the  mak- 
ing of  the  contract,  and  is,  in  the  particular  case,  a  proxi- 
mate result  of  the  breach,  it  must  be  compensated  for, 

11 — Wright  V.  Beardsley,  (1907)  breaches    of    contract    for    which 

46  Wash.  16,  89  Pac.  172.    In  a  die-  damages  for  mental  suffering  have 

tum,  the  opinion  in  Smith  v.  San-  been  allowed. 

born    State    Bank,    (1910)    147    la.  12— Hall   v.   Jackson,    (1913)    24 

640,    126   N.    W.    779,    calls   atten-  Colo.    App.    225,    134    Pac.    151. 
tion     to    the    tortiousness    of    all 


MENTAL  SUFFERING  173 

refraining  from  any  discussion  of  malice  or  tortious- 
ness.^^ 

Clearly,  there  is  no  rule  that  damages  for  mental  suf- 
fering are  never  to  be  allowed  in  a  contract  action;  but 
the  eases  in  which  such  damage  is  shown  to  be  the  prob- 
able, natural,  and  proximate  result  of  the  breach,  are 
comparatively  rare.^^ 

80.  Mental  Suffering  a^  an  Element  of  Damage  in  Tort. 
— In  many  tort  cases,  mental  suffering  is  a  proper  ele- 
ment of  damage.  "Where  a  tort  merely  against  property 
has  been  committed,  it  is  not  usually  a  recoverable  ele- 
ment ;  but,  in  the  case  of  a  negligent  tort  causing  injury 
to  plaintiff's  person,  or  of  a  wilful  tort  to  the  person, 
the  plaintiff'  may  recover  for  mental  suffering. 

81.  Actions  for  Torts  Purely  to  Property  are  com- 
monly like  those  on  ordinary  business  contracts,  in  that 
no  damages  for  mental  suffering  are  assessed,  the  usual 
reason  given  being  that  such  suffering  is  not  a  natural 
consequence  of  injury  to  property. ^^  But,  when  such  tor- 
tious injury  to  property  is  accompanied  by  wilful  mis- 
conduct, such  as  insolence,  a  larger  recovery  is  sometimes 
allowed,  even  independently  of  the  principle  of  exemplary 

13 — Adams  v.  Brosius,  (1914)  69  where  plaintiff's  wife  had  no  phy- 

Ore.    513,    139   Pae.    729,    does   not  sician  in  attendance,  by  reason  of 

allow  damages  for  mental  suffering  nondelivery  of  telegram  by  defend- 

for  breach  of  contract  of  physician  ant. 

to   attend    plaintiff's   wife,   saying  14 — Browning  v.  Fies,  (Ala.  App. 

that  such  suffering  is  not  a  proxi-  1912)  58  So.  931. 

mate   or   natural   result,    and    that  15 — White  v.  Dresser,  (18S3)  135 

damages  for  such  suffering  are  too  Mass.  150,  46  Am.  Rep.  454. 

speculative.     So   also  in   Hyatt   v.  In    Wyman    v.    Leavitt,    (1880) 

Adams,    (1867)     16    Mich.    180,    a  71   Me.   227,   36   Am.   Rep.  303,   an 

tort  action  for   malpractice   result-  action  for  injury  to  real  estate,  it 

ing     in     the    death     of    plaintiff's  was  held  that   the  mental   anxiety 

wife.  of   the   plaintiffs   as   to   their    own 

Contra:    Western  Union  Tel.  Co.  safety  and   that   of  their  children, 

V.  Henderson,   (1890)    89  Ala.  510,  was  not  a  recoverable  element  of 

7   So.   419,   18   Am.   St.   Rep.   148,  damage. 


174  LAW  OF  DAIiIAGES 

damages.  As  Bramwell,  B.  says  in  Emblen  v.  Myers,^® 
' '  Suppose  a  person  caused  a  nuisance  in  front  of  another 
man's  house,  damages  might  be  given  for  the  insult  as 
well  as  the  actual  injury."  Sometimes  mental  suffering 
is  a  natural,  probable,  and  proximate  result  of  a  trespass 
to  property,  and  so  is  considered  a  proper  element  of 
damage,  as  in  an  action  for  breaking  the  plaintiff's  close 
and  carrying  away  the  corpse  of  the  plaintiff's  child. 
Such  a  case  was  Meagher  v.  Driscoll,"  in  which  the  court 
said :  *  *  The  gist  of  the  action  is  the  breaking  and  enter- 
ing of  the  plaintiff's  close.  But  the  circumstances  which 
accompany  and  give  character  to  a  trespass  may  always 
be  shown  either  in  aggravation  or  mitigation.  *  *  * 
He  who  is  guilty  of  a  wilful  trespass,  or  one  characterized 
by  gross  carelessness  and  want  of  ordinary  attention  to 
the  rights  of  another,  is  bound  to  make  full  compensation. 
Under  such  circumstances,  the  natural  injury  to  the  feel- 
ings of  the  plaintiff  may  be  taken  into  consideration  in 
trespasses  to  real  estate  as  well  as  in  other  actions  of  tort. 
Acts  of  gross  carelessness,  as  well  as  those  of  wilful 
mischief,  often  inflict  a  serious  wound  upon  the  feelings, 
when  the  injury  done  to  property  is  comparatively  tri- 
fling. We  know  of  no  rule  of  law  which  requires  the 
mental  suffering  of  the  plaintiff,  or  the  misconduct  of 
the  defendant,  to  be  disregarded.  The  damages  in  such 
cases  are  enhanced,  not  because  vindictive  or  exemplary 
damages  are  allowable,  but  because  the  actual  injury  is 
made  greater  by  wantonness." 

82.  Torts  to  the  Person. — Mental  suffering  is  allowed 
as  an  element  of  damage,  where  plaintiff  has  suffered  a 
physical  injury  as  a  result  of  defendant's  tort  to  his  per- 
son.'^ **In  trespass  for  assault  and  battery,  the  jury  may 
consider  not  only  the  mental  suffering  which  accompanies 

16 — 6  H.  &  N.  54,  158  Eng.  Eepr.  18— Dictum  in  Wyman  v.  Leav 

23.  itt,  (1880)  71  Me.  227,  36  Am.  Rep. 

17— (1868)  99  Mass.  281,  a03;  citing  Prentiss  v.^Shaw,  (1869) 


MENTAL  SUFFERING  175 

and  is  part  of  the  bodily  pain,  but  that  other  mental  con- 
dition of  the  injured  person  which  arises  from  the  insult 
of  the  defendant's  blows.  Or  for  an  assault  alone,  when 
maliciously  done,  though  no  actual  personal  injury  be 
inflicted.'*  ^^  A  fortiori,  damages  for  mental  suffering 
are  allowed  where  slight  physical  damage  to  plaintiff's 
person  has  resulted  from  defendant's  wrong. 

83.  Where  There  Is  no  Physical  Injury. — Damages  for 
mental  suffering  are  sometimes  assessed  in  cases  of  wil- 
ful tort,  where  there  is  no  direct  physical  injury,  and  are 
refused  in  cases  of  negligence  without  physical  injury. 
The  wilfulness  or  lack  of  wilfulness  of  the  defendant's 
act  is  sometimes  expressly  made  the  differentiating  ele- 
ment.2®  As  is  said  in  Kline  v.  Kline,^^  **  While  the  cur- 
rent of  authority  supports  the  doctrine  that  there  can 
be  no  recover}^  for  mental  suffering,  where  there  has 
been  no  physical  injury,  in  ordinary  actions  for  neg- 
ligence, yet  that  is  not  the  law  as  applied  to  a  willful 
injury  committed  against  the  complaining  party."  Prob- 
ably the  really  essential  difference  between  the  willful 
tort  and  the  negligent  tort  is  not  the  wilfulness  itself,  but 
is  rather  the  fact  that  the  wilful  tort,  such  as  an  assault, 

56  Me.  427,  96  Am.  Dec.  475;  and  (1902)    158  Ind.   602,  64  N.  E.  9, 

Wadsworth    v.    Treat,    (1857)     43  58  L.  R.  A.  397,  in  which  the  court 

Me.  163.  says:     "Having   reached    the   con- 

"  Mental  suffering  cannot  be  dis-  elusion    that   an    actionable   wrong 

sociated  from  physical  pain.  Where  was   done    appellee   by   appellant 's 

the  latter  is  found,  the  former  is  willful  act,  we  assert  that,  as  the 

implied. ' ' — Montgomery   &   E.  Ry.  law  imports  some  damage,  she  was 

Co.  V.  Mallette,  (1891)  92  Ala.  209,  entitled  to  recover  full  compensa- 

9  So.  363.  tian,  which   includes  compensation 

19 — Citing     Goddard     v.     Grand  for  her  mental  suffering,   even   if 

Trunk  Ry.,    (1869)   57   Me.   202,  2  there  was  no  unlawful  touching  of 

Am.  Rep.  39;   and  Beach   v.  Han-  the  body  and  no  physical  injury." 

cock,  (1853)  27  N.  H.  223,  59  Am.  20 — Jansen  v.  Minneapolis,  etc., 

Dec.  373.  Ry.  Co.,  (1910)   112  Minn.  496,  128 

One    of    the    best    cases    on    the  N.  W.  826. 

allowance   of   damages   for   mental  21— (1902)    158   Ind.   602,   64  N. 

suffering  where  there  is  no  direct  E.  9,  58  L.  R.  A.  397. 
physical  injury,  is  Kline  v.  Kline, 


176  LAW  OF  DA:\rAGES 

is  actionable  per  se,  independently  of  damage  to  plaintiff, 
while  negligence  is  not  actionable  per  se,  but  is  actionable 
only  when  damage  has  resulted  to  plaintiff.  Mental  suf- 
fering is  not  an  independent  cause  of  action;  an  action- 
able wrong,  to  which  mental  suffering  is  attached,  must 
be  established  before  such  suffering  can  be  compensated 
for.2^  Mental  suffering  may  be  allowed  as  an  element 
of  damage  when  a  proximate  result  either  of  a  wilful 
tort  2^  or  of  actionable  negligence  causing  injury  to  the 
person.^^'  But  the  negligence  must  be  actionable,  or  there 
can  be  no  compensation  for  mental  suft'ering.^^ 

As  a  great  deal  of  unnecessary  confusion  beclouds  this 
subject,  it  seems  best  to  digress  sufficiently  to  determine 
what  constitutes  actionable  negligence.  **In  every  case 
involving  actionable  negligence,  there  are  necessarily 
three  elements  essential  to  its  existence:  (1)  The  exist- 
ence of  a  duty  on  the  part  of  the  defendent  to  protect 
the  plaintiff  from  the  injury  of  which  he  complains;  (2)  a 
failure  by  the  defendent  to  perform  that  duty;  and  (3) 
an  injury  to  the  plaintiff  from  such  failure  of  the  defend- 
ant. When  these  elements  are  brought  together,  they 
unitedly  constitute  actionable  negligence.    The  absence 

22— Reed   v.   Maley,    (1903)    115  tation  of  Lynch  v.  Knight,  (1861) 

Ky.  816,  74  S.  W.  1079,  62  L.  R.  A.  9  H.  L.  Cas.  577,  11  Eng.  Repr.  854; 

900,   in   which   defendant,   without  Johnson  v.  Hahn,  (1914)   168  la. 

committing    an    assault    or    other  147, 150  N.  W.  6;  Lonergan  v.  Small, 

trespass,  solicited  plaintiff,  a  mar-  (1909)  81  Kan.  48,  105  Pac.  27,  25 

ried  woman,  to  have  sexual  inter-  L.  R.  -A.   (N.  S.)   976;  Phillips  v. 

course.     Plaintiff,  proving  no  tort  Hoyle,  (1855)  4  Gray  (Mass.)  568; 

or  breach  of  contract,  showed  no  Stowe  v.  Hey  wood,  (1863)  7  Allen 

cause  of  action  whatever,  and  so,  (Mass.)  118. 

of    course,    could    not    recover    for  24 — McDermott  v.  Severe,  (1905) 

mental  suffering.     The  opinion  dis-  202  U.  S.  600,  26  Sup.  Ct.  709,  50 

tinguishes     Newell     v.     Whitcher,  L.  ed.  1162. 

(1880)    53    Vt.    589,    38    Am.    Rep.  25— "Of  course,  negligence  with- 

703.  out   injury   gives   no   right    of   ac- 

23— Larson  v.  Chase,   (1891)   47  tiom."     Purcell   v,    St.    Paul    City 

Minn.    307,   50   N.    W.    238,    14   L.  Ry.   Co.,    (1892)    48  Minn.   134,  50 

R     A.    85,    28    Am.    St.    Rep.    370,  N.    W.   1034,   16  L.   R.   A.   203. 
criticizing    the    usual    misinterpre- 


MENTAL  SUFFEKING  177 

of  any  one  of  these  elements  renders  a  complaint  bad,  or 
the  evidence  insufficient. ' '  ^" 

84.  Mental  Suffering  Not  Arising  from  Physical  In- 
jury or  Pain. — Mental  suffering  caused  by  the  defend- 
ant 's  negligence,  but  not  arising  from  physical  injury  or 
pain,  is  not  usually  regarded  as  giving  a  right  of  action.^' 
This  is  often  put  upon  the  ground  that  such  mental  suffer- 
ing is  too  remote.^^  As  a  matter  of  fact,  it  is  not  always 
too  remote,  as  mental  suffering  may  be  and  sometimes  is 
a  proximate  result  of  defendant's  negligence,  even  where 
there  is  no  physical  injuiy.  The  difficulty  of  ascertaining 
whether  the  mental  suffering  was  caused  by  the  negligent 
act,  is  also  urged  as  a  reason  for  denying  relief.^^  The 
mere  fact,  however,  that  the  plaintiff's  case  as  to  mental 
suffering  depends  largely  upon  his  own  testimony  or  upon 
unsatisfactory  evidence,  should  not  be  deemed  utterly  to 
destroy  his  right  to  recover  for  such  suffering,  but  rather 
merely  to  weaken  his  case  as  to  matters  of  proof.  Strict 
adherence  to  the  rule  bars  many  just,  as  well  as  unjust, 
claims.  In  their  fear  of  the  possible  effect  of  a  different 
holding  in  encouraging  a  flood  of  dishonest  litigation 
based  upon  fictitious  claims,  some  of  the  courts  have 
deprived  many  persons  of  the  right  to  enforce  honest 
claims  for  actual  injuries.  The  pernicious  extension  of 
the  same  doctrine  even  to  cases  wherein  physical  injury 
has  been  caused  by  the  mental  suffering,  will  be  discussed 
elsewhere.  As  before  stated,  mental  suffering  is  not  an 
independent  cause  of  action,  and  so  an  actionable  wrong 
must  first  be  established,  before  compensation  can  be  had 
for  mental  suffering. 

But,  where  a  wilful  tort  causes  mental  suffering  with- 

26— Faris  v.  Hoberg,  (1893)   13-t  Ry.   Co.,  1896  2  Q.  B.  248,  which, 

Ind.  269,  33  N.  E.  1028,  39  Am.  St.  however,   was   a    slightly   different 

Rep.   261.  case,    arising    on    an    accident    in- 

27 — Victorian   Eys.    Commission-  surance  policy, 

ers    V.    Coultas,    (House    of   Lords,  28 — Victorian    Rys.    Commission- 

1888)  L.  R.  13  App.  Cas.  222;  not  ers  v.  Coultas,  supra, 

follorwed  in  Pugh  v.  London,  etc.,  29— Id. 
Bauer  Dam. — 12 


178  LAW  OF  DA3IAGES 

out  any  direct  physical  injury,  there  is  a  cause  of  action.^** 
In  cases  of  abduction,  seduction,  libel,  slander,  assault, 
and  other  wilful  torts,  mental  suffering  is  allowed  for, 
although  the  plaintiff  has  suffered  no  personal  physical 
injury.^^  This  is  because,  in  such  cases,  the  defendant's 
wrongful  act  is  actionable  per  se,  being  in  this  respect 
different  from  mere  negligence. 

85.  Physical  Injuries  Resulting  from  Mental  Suffer- 
ing.— Fright,  fear,  or  worry,  caused  by  the  defendant's 
wrong,  often,  in  turn,  produces  serious  bodily  harm.  In- 
deed a  nervous  shock  is  itself  sometimes  very  correctly 
said  to  be  a  physical  rather  than  a  mental  injury,  even 
when  a  mental  disturbance  accompanies  it.  Probably 
most  of  such  cases,  in  which  the  plaintiff's  person  has  not 
come  into  contact  with  any  physical  agency  of  the  defend- 
ant, are  cases  involving  that  species  of  mental  suffering 
known  as  fright.  Where  fright,  proximately  caused  by 
a  wrongful  act,  either  wilful  or  merely  negligent,  causes 
physical  injury,  such  as  nervous  prostration,  general  im- 
pairment of  health,  or  a  miscarriage,  such  physical  injurj'' 
is,  by  some  courts,  and  according  to  the  better  view, 
deemed  a  proximate  result  of  the  wrongful  act,  and  so  is 
a  recoverable  element  of  damage.^-    The  weight  of  case 

30— Watson  v.  Dilts,  (1902)    116  L.    R.    A.    203;    Hill    v.    Kimball, 

la.   249,  89  N.  W.  1068,  57  L.  R.  (1890)    76  Tex.  210,  13   S.  W.  59, 

A.    559,     93     Am.     St.     Rep.     239;  7  L.  R.  A.  618;   Spade  v.  Lynn  & 

Schmitz  V.  St.  Louis,  etc.,  R.  Co.,  Boston   R.    Co.,    (1897)    168   Mass. 

(1893)   119  Mo.  256,  24  S.  W.  472,  285,  47  N.  E.  88,  38  L.  R.  A.  512, 

23   L.   R.   A.   250;   Lipman   v.   At-  60  Am.  St.  Rep.  393,  differentiates 

lantic,  etc.,  R.  Co.,   (S.  Car.  1917)  between    cases    of    mere    ordinary 

93  S.  E.  714,  85  Cent.  Law  Jour.  negligence  and  those  of  gross  reck- 

339.  lessnesB   or   wilful   misconduct,   al- 

31 — Stowe    V.    Heywood,    (1863)  lowing  no  recovery  for  mere  fright 

7  Allen  (Mass.)   118.  or   mental    distress   caused   by   or- 

32 — Watson  v.  Dilts,  (1902)   116  dinary    negligence,    but    impliedly 

la.  249,  89  N.  W.   1068,  57  L.  R.  admitting  that  such  recovery  is  al- 

A,  559,  93  Am.  St.  Rep.  239;  Pur-  lowed   where   there  is  a   wilful    or 

cell  V.  St.  Paul  City  Ry.  Co.,  (1892)  grossly  negligent  wrong. 

48   Minn.   134,   50  N.  W,  1034,   16  "Tn  the  light  of  modern  science, 


MENTAL  SUFFERING 


179 


authority,  however,  is  that  such  physical  injury  is  too 
remote  a  consequence  to  constitute  a  cause  of  action,  if 
the  wrongful  act  was  merely  negligent.^^  Here,  as  in 
actions  brought  for  mental  suffering  alone,  anticipation 
of  the  probable  effect  of  favorable  holdings  in  increasing 
the  litigation  of  wrongful  claims,  has  tended  to  make  the 
courts  very  reluctant  to  recognize  the  plaintiff's  rights.^* 
Where  a  wrongful  act,  actionable  per  se,  is  wilful, 
there  is  almost  universally  an  allowance  of  damages  for 


— ^nay,  in  the  light  of  common 
knowledge, — can  a  court  say,  as 
a  matter  of  law,  that  a  strong 
mental  emotion  may  not  produce 
in  the  subject  bodily  or  mental 
injury?  May  not  epilepsy  or  other 
nervous  disorder  or  insanity  result 
from  fright?  May  not  a  miscar- 
riage result  from  a  mental  shock?" 
— Gulf,  Colorado,  etc.,  Ry.  Co.  v. 
Hayter,  (1900)  93  Tex.  239,  54  S. 
W.  944,  47  L.  R.  A.  325,  77  Am. 
St.  Rep.  856. 

See  note,  "Right  to  Recover 
Damages  for  Bodily  Pain  and  Suf- 
fering Resulting  from  Fright  with- 
out Actual  Physical  Violence,"  12 
Ann.  Cas.  741. 

33 — Victorian  Rys.  Commission- 
ers V.  Coultas,  (House  of  Lords, 
1888)  L.  R.  13  App.  Cas.  222. 
Mitchell  V.  Rochester  Ry.  Co., 
(1896)  151  N.  Y.  107,  45  N.  E.  354, 
34  L.  R.  A.  781,  56  Am.  St.  Rep. 
604,  goes  so  far  as  to  hold  that 
there  can  be  no  recovery  for  a 
miscarriage  from  fright  caused  by 
defendant's  negligence.  In  Ire- 
land, there  has  been  a  refusal  to 
follow  the  rule  laid  down  in  the 
Coultas  Case.  Bell  v.  Great  North- 
ern Ry.  Co.,  (1890)  26  L.  R.  Ire. 
428;  in  which  decision  attention 
is  called  to  an  unreported  case  de- 
cided in  1882-4,  allowing  recovery 
for  nervous  shock  without  more  di- 


rect physical  injury.  This  is  of 
especial  interest,  as  the  Coultas 
Case  is  put  partly  on  the  ground 
of  the  novelty  of  the  action. 

In  accord  with  the  Bell  Case 
are:  Sloane  v.  Southern  California 
Ry.  Co.,  (1896)  111  CaJif.  668,  44 
Pac.  320,  32  L.  R.  A.  193;  Purcell 
v.  St.  Paul  City  Ry.  Co.,  (1892) 
48  Minn.  134,  50  N.  W.  1034,  16 
L.  R.  A.  203;  and  many  other 
American   cases. 

34 — Wilkinson  v.  Downton,  L.  R. 
1897  Q.  B.  57.  "While  almost  all 
the  authorities  agree  that  recovery 
may  be  had  for  physical  injury  re- 
sulting from  fright  caused  by  a 
wilful,  wrongful  act,  the  courts  are 
hopelessly  divided  in  opinion 
*  *  *  as  to  whether  or  not 
recovery  should  be  permitted  where 
the  act  causing  the  fright  is  a 
negligent  one  merely,  and  not  a 
wilful  one.  Not  only  are  they 
disagreed  as  to  whether  a  recovery 
should  be  allowed  for  a  physical 
injury  resulting  from  fright  caused 
by  a  wrongful  act,  but,  where  they 
deny  recovery,  they  disagree  as 
to  the  reason  for  denying  it;  and 
very  often  a  court  will  state  two 
or  three  reasons  which  are  incon- 
sistent." Note  in  22  L.  R.  A. 
(N.  S.)  1073.  See  also  note  in  3 
L.  R.  A.  (N.  S.)  49. 


180  LAW  OF  DAMAGES 

physical  injury  consequent  upon  fright  or  nervous  shock 
proximately  caused  by  such  wrongful  act.^^ 

86.  The  "Impact  Theory. " — A  number  of  negligence 
cases,  approving  the  rule  laid  down  in  Victorian  Railway 
Commissioners  v.  Coultas,^^  have  gone  still  farther  and 
laid  down  a  rule  that,  in  order  to  have  a  recovery  for 
fright  or  other  mental  suffering  or  the  results  thereof, 
the  plaintiff  must  prove  that  he  was  injured  by  physical 
impact.^*^  As  a  matter  of  fact,  the  court,  in  the  Coultas 
Case,  expressly  refrains  from  finding  that  impact  is 
essential  to  a  recovery.  The  rule  making  impact  essential 
is  not  based  upon  sound  reason  and  is  often  criticized. 
Although  negligence  plus  fright  or  other  mental  suffering 
alone  may  give  no  right  of  recovery,  damages  should  be 
assessed  for  negligence  plus  resulting  fright  plus  physical 
injury  resulting  from  the  fright,  even  where  there  is  no 
impact,  if,  on  the  facts  of  the  case,  the  physical  injury 
is  a  proximate  result  of  defendant's  negligence.^^  The 
mere  intervention  of  fright  or  other  mental  disturbance 
should  not  be  held  so  to  break  the  chain  of  causal  connec- 
tion between  defendant's  negligence  and  plaintiff's  phy- 
sical injury  as  to  make  such  physical  injury  too  remote. 

87.  Mental  Suffering  Caused  by  Injury  to  Third  Party. 
— No  right  of  action  accrues  to  one  because  of  one's 
distress  of  mind  at  an  injury  to  another.  A  kind  of 
causal  connection  may  exist  between  the  wrong  and  such 

35 — L.  E.  A.  notes,  supra.  199,  a  very  poorly  reasoned  case. 

36— (House  of  Lords,  1888)  L.  R,  See  also  Mitchell  v.  Rochester  Ry. 

13  App.  Caa.  222.  Co.,    (1896)    151   N.  Y.   107,  45  N. 

37— Spade  v.  Lynn  &  Boston  R.  E.   354,  34  L.   R.   A.   781,  56  Am. 

Co.,    (1897)    168  Mass.  385,   47  N.  St.  Rep.  604. 

E.    88,    38   L.   R.   A.    512,  60   Am.  38— Sloane      v.      Southern    Cali- 

St.  Rep.  393.     The  '"impact  theo-  fornia  Ry,   Co.,    (1896)    111    Calif, 

ry"    is    substantially    fallowed    in  668,  44  Pac.  320,  32  L.  R.  A.  193; 

Braun    v.   Craven,    (1898)    175   111.  O'Meara  v.  Russell,   (Wash.  1916) 

401,    51    N.    E.    657,   42    L.    R.    A.  156  Pac.  550. 


MENTAL  SUFFERING  181 

mental  suffering,  but  the  result  is  too  remote.^^  \^o, 
mental  suffering  at  the  libel  of  a  dead  relative  is  not  a 
cause  of  action.^ 9  The  allowance  of  damages  for  mental 
suffering  of  a  parent  in  an  action  for  seduction,  is  some- 
times pointed  to  as  an  exception  to  the  general  rule;^^ 
but  it  is  more  an  exception  in  appearance  than  in  reality, 
for  the  action  is  for  a  wrong  done  to  the  parent 's  rights 
in  his  child.  In  such  a  case,  although  the  physical  injury 
takes  effect  only  upon  the  body  of  the  seduced,  there  is 
an  invasion  and  disturbance  of  plaintiff's  family  rela- 
tions. 

CASE   ILLUSTRATIONS 

1.  Defendant  railroad  company  broke  its  contract  to  trans- 
port plaintiff  to  the  bedside  of  his  sick  father.  By  defendant's 
delay,  plaintiff  was  compelled  to  wait  for  a  long  time  and  to 
suffer  much  anxiety.  He  cannot  recover  for  mental  suffering. 
This  is  a  mere  breach  of  contract,  without  physical  suffering  or 
pecuniary  loss.*^ 

2.  Defendant  broke  his  promise  to  marry  plaintiff.  Plaintiff 
may  recover  for  "whatever  mortification  or  distress  of  mind 
she  suffered,  resulting  from  the  refusal  of  the  defendant  to  ful- 
fill his  promise. ' '  ^^ 

3.  The  defendant  wrongfully  removed  the  remains  of  the 
plaintiff's  child  from  a  burying-place.  Injury  to  the  feelings 
of  the  plaintiff  constitutes  a  proper  element  of  damage.** 

39— Covington  St.  E.  Co.  v.  Pack-  Packer,  (1873)  9  Bush.  (Ky.)  455, 

er,    (1873)    9  Bush    (Ky.)    455,   15  15  Am.  Eep.  725. 

Am.    Rep.,    725;    Sperier     v.     Ott,  42 — Wilcox  v.  Richmond,  etc.,  R. 

(1906)    116  La.   1087,   41   So.   323,  Co.,  (1892)  52  Fed.  264,  3  C.  C.  A. 

7  L.  R.  A.    (N.  S.)    518,  114  Am.  73,  8  U.  S.  App.  118,  17  L.  R.  A. 

St.  Rep.  587;  Gulf,  C.  &  S.  F.  Ry.  804. 

Co.    V.    Overton,    (1908)    101    Tex.  43— Coolidge  v.  Neat,  (1880)  129 

583,-^110   S.  W.    736,  19   L.   R.   A.  Mass.  146. 

(N.  S.)    500.  44 — Bessemer  Land,  etc.,  Co.  v. 

40— Bradt  v.  New  Nonpareil  Co.,  Jenkins,    (1895)    111    Ala.    135,    18 

(1899)    108  la.  449,.  79  N.  W.   122,  So.   565,   56  Am.   St.   Rep.   26;    fol- 

,45  L.  R.  A.  681.  lowing  Meagher  v.  Driscoll,  (1868) 

'  41— Covington    St.    Ry.    Co.    v.  99  Mass.  281,  96  Am.  Dec.  759. 


182  LAW  OF  DAIMAGES 

4.  The  plaintiff,  a  passenger  on  the  defendant's  boat,  was 
compelled  by  the  defendant  to  leave  the  boat  because  he  had  not 
had  his  ticket  validated  according  to  its  terms.  The  plaintiff 
cannot  recover  for  fear  and  trepidation  caused  by  the  fact  that 
the  defendant  failed  to  furnish  him  safe  means  of  getting  off 
the  boat.^5 

5.  Defendant's  wrongful  act  caused  damage  to  plaintiff's  prop- 
erty, but  not  physical  injury  to  the  plaintiff.  There  can  be  no 
recovery  here  for  mental  suffering.^^ 

6.  The  plaintiff,  a  young  woman  of  good  character,  was,  by 
mistake,  wrongfully  ordered  off  the  grounds  of  the  defendant 
company,  before  a  large  number  of  people,  by  an  employee  of 
the  defendant,  who  thought  she  was  a  lewd  woman.  She  can 
recover  for  mental  suffering,  although  she  suffered  no  direct 
physical  injury.^'^ 

7.  The  defendant  wrongfully  destroyed  the  furnace  in  the 
house  occupied  by  the  plaintiff,  whose  child  was  ill.  It  did  not 
appear  that  the  child  was  injured  by  the  defendant's  act,  but 
"the  plaintiff  was  annoyed,  and  subjected  to  more  or  less  mental 
suffering  and  anxiety,  by  reason  thereof."  Held,  that  such 
mental  suffering  and  anxiety  could  be  considered  in  estimating 
damages.*^ 

8.  The  defendant  railroad  company  shoved  its  cars  off  the 
end  of  a  switch  track  and  into  the  dwelling  of  the  plaintiff, 
who,  being  in  the  house  at  the  time,  "suffered  a  severe  nervous 
shock  that  shattered  her  nervous  system  and  caused  her  great 
bodily  pain  and  mental  anguish  and  permanent  injury  to  her 
person  and  health."  There  was  no  claim  that  the  plaintiff,  at 
the  time  of  the  accident,  received  any  actual  bodily  injury,  or 
that  the  defendant's  negligence  was  willful  or  wanton.  Here 
there  can  be  no  recovery  for  injuries  resulting  from  fright  or 
nervous  shock.  Such  injuries  are  said  by  the  court  not  to  be 
the  natural  and  probable  consequences  of  the  negligence  com- 

45 — Southern  Pacific  Co.  v.  Am-  47 — Davis   v.   Tacoma   Rv.,   etc., 

mons,  (Tex.  Civ.  App.  1894)   26  S.  Co.,   (1904)   35  Wash.  203,  77  Pac. 

W.  135.  209,  66  L.  R.  A.  802. 

46— Gulf,  etc.,  Ry.  Co.  v.  Trott,  48— Vogel   v.   McAuliflfe,    (1895) 

(1894)   86  Tex.  412,  25  S.  W.  419,  18  R.  I.  791,  31  Ati.  1. 
40  Am.   St.  Rep.   866. 


MENTAL  SUFFERING  183 

plained  of.     The  decision  is  based  partly  upon  the  ground  of 
public  policy.*^ 

9.  The  defendant,  by  negligent  blasting,  caused  a  rock  to 
crash  through  the  plaintiff's  residence,  frightening  the  female 
plaintiff,  greatly  shocking  her  nervous  system,  and  almost  caus- 
ing a  miscarriage.  Held,  that  there  can  be  a  recovery  for  nerv- 
ous shock.  "The  nerves  are  as  much  a  part  of  the  physical 
system  as  the  limbs,  and  in  some  persons  are  very  delicately 
adjusted,  and,  when  'out  of  tune,'  cause  excruciating  agony. 
We  think  the  general  principles  of  the  law  of  torts  support  a 
right  of  action  for  physical  injuries  resulting  from  negligence, 
whether  wilful  or  otherwise,  none  the  less  strongly  because  the 
physical  injury  consists  of  a  wrecked  nervous  system  instead  of 
lacerated  limbs.  "^° 

10.  The  defendant  came  to  the  home  of  the  plaintiff  and  her 
husband,  and,  within  hearing,  but  out  of  sight  of  the  plaintiff, 
who  was  in  bed,  quarreled  with  the  plaintiff's  husband,  calling 
him  offensive  names,  using  vile  language,  drawing  a  knife,  and 
threatening  to  cut  him.  The  plaintiff  was  pregnant  at  the  time 
and  became  so  frightened  that  she  had  a  miscarriage.  Held, 
that  there  could  be  no  recovery  for  the  plaintiff's  fright  and 
consequent  miscarriage.  "The  injury  in  question  not  being 
one  which  the  defendant  could  reasonably  be  expected  to  antici- 
pate as  likely  to  ensue  from  his  conduct,  we  can  not  regard  it 
as  the  natural  consequence  thereof,  for  which  defendant  is 
legally  liable." ^i 

11.  Defendant,  in  the  absence  of  plaintiff's  husband,  and  with 
the  purpose  of  collecting  a  claim  against  the  husband,  wrong- 
fully entered  the  home  of  plaintiff,  who  was  far  advanced  in 
pregnancy.     Defendant  made  threats,  causing  plaintiff  to  be- 

49— Miller  v.  Baltimore  &  O.  S.  51— Phillips  v.  Dickerson,  (1877) 

W,   K.  Ca.,   (1908)    78   O.   St.  309,  85  111.  11,  28  Am.  Rep.  607.    Scott, 

85  N.  E.  499,  18  L.  R.  A.     (N.  S.)  J.  dissented.  The  result  of  the  hold- 

949,  125  Am.  St.  Rep.  699.  ing   in   the   particular   case   seems 

50 — Kimberley       v.        Rowland,  unfortunate  and  unjust.     The  deci- 

(1906)  143  N.  C.  398,  55  S,  E.  778,  sion   seems   to  be  a  result   of  too 

7   L.    R.    A.    (N.    S.)    545;    a   well  strict  a  construction  of  "proximate 

reasoned  case.     The  opinion  seems  result." 
to  be  based  upon  more  satisfactory 
reasoning   than    does    that    in   the 
preceding  case. 


184  LAW  OF  DA:\1AGES 

come  nervous,  excited  and  ill,  and  to  give  premature  birth  to 
her  child.    Held,  that  defendant  is  liable.^^ 

12.  Defendant  wrongfully  entered  the  bed  room  of  plaintiff, 
a  blind  girl,  and  leaned  over  her  and  solicited  criminal  sexual 
relations,  which  plaintiff  refused.  Plaintiff  was  so  alarmed  by- 
defendant's  acts,  and  her  feelings  were  so  outraged,  that  she 
suffered  a  long  illness.    Held,  that  she  may  recover  damages.^^ 

13.  The  defendant  company  conducted  a  school  for  instruc- 
tion in  the  operation  of  automobiles.  Defendant's  employee 
negligently  permitted  an  inexperienced  student  to  drive  an  au- 
tomobile, which,  because  of  the  student's  lack  of  skill,  collided 
with  a  buggy  in  which  were  the  plaintiff  and  others,  delivering 
so  severe  a  shock  to  the  plaintiff,  ''who  was  leaning  against  the 
back  of  the  seat  of  the  buggy,  that  she  was  knocked  forward  out 
of  her  seat."  Plaintiff  was  then  pregnant.  "About  a  month 
thereafter  she  suffered  a  miscarriage.  By  the  medical  testi- 
mony the  foetus  had  been  dead  about  2  or  3  weeks,  and  the 
miscarriage  was  the  result  of  the  fright  and  the  shock  caused 
by  the  collision,"  and  evidence  was  also  introduced,  showing 
that  the  plaintiff  had  suffered  a  second  miscarriage  a  few  months 
after  the  first,  and  further  medical  testimony  was  given  that  the 
second  miscarriage,  in  the  opinion  of  the  witness,  was  caused  by 
the  other  injuries  in  question.  The  plaintiff  could  recover  for 
fright  either  accompanying  or  following  the  original  physical 
injury,  and  for  the  miscarriage  or  miscarriages  resulting  from 
the  direct  personal  injury  and  fright,^^ 

14.  Defendant  unlawfully  placed  a  barbed  wire  fence  across 
a  highway.  Plaintiff,  with  his  wife  and  daughter,  in  a  carriage, 
collided  with  it,  and  plaintiff  was  injured.  Held,  that  plaintiff's 
'mental  anxiety  for  the  safety  of  his  wife  and  daughter  cannot 
be  considered  as  an  element  of  damage.^" 

52 — Engle    v.    Simmons,    (1906)  54 — Easton  v.  United  Trade,  etc., 

148  Ala.  92,  41  So.  1023,  12  Ann.  Co.,   (1916)   173  Cal.  199,  159  Pac. 

Cas.    740.     Accord:     Hill    v.   Kim-  597. 

ball,  (1890)  76  Tex.  210,  13  S.  W.  55— Keyes  v,  Minneapolis  &  St. 

59,  7  L.   R.  A.  618.  L.   Ry.   Co.,    (1886)    36  Minn.   290, 

53— Newell   v.  Whitcher,   (1880)  30  N.  W.  888. 
53  Vt.  589,  38  Am.  Rep.  703. 


CHAPTER  XXII 

Inconvenience 

88.  Physical  Inconvenience  is  a  proper  element  of 
damage  whether  the  action  be  in  contract  ^  or  in  tort,^ 
subject,  of  course,  to  the  usual  rules  as  to  proximity  and 
certainty.  But  when  inconvenience  produces  nothing 
more  than  annoyance  or  "worriment,"  compensation  is 
not  allowed."^  One  judge,  in  deciding  an  important  case,^ 
seems  to  lay  some  stress  upon  the  seriousness  of  the 
inconvenience,  saying :  * '  I  think  there  is  no  authority  that 
personal  inconvenience,  where  it  is  sufficiently  serious, 
should  not  be  subject  of  damages  to  be  recovered  in  an 
action  of  this  kind."  The  question  how  serious  incon- 
venience must  be  in  order  to  constitute  an  element  of 
damage,  if  seriousness  forms  the  sole  criterion,  is  mani- 
festly very  difficult.  But  it  is  obvious  that  not  all  degrees 
of  inconvenience  are  of  sufficient  importance  to  claim 
the  attention  of  a  court,  and  probably  no  more  satis- 
factory or  practicable  plan  will  ever  be  found  than  to 
make  seriousness  of  the  inconvenience  the  determining 
factor  and  to  say  that  no  inconvenience  shall  be  com- 
pensated for  unless  it  be  of  sufficient  seriousness  to  war- 

1— Hobbs    V.    London    &    S.    W.  Co.,   (1896)    15  Wash.  213,  46  Pac. 

Ey.  Co.,  (1875)  L.  K.  10  Q.  B.  111.  243,  55  Am.  St.  Rep.  883,  quoting  1 

2— Baltimore  &  P.  R.  Co.  v.  Fifth  Sedg.  Dam.  (8th  ed.)  §  42,  as  fol- 
Baptist  Church,  (1883)  108  U.  S.  lows:  "Damages  will  not  be  given 
317,  27  L.  ed.  739,  2  Sup.  Ct.  719;  for  mere  inconvenience  and  annoy- 
wherein  physical  inconvenience  to  ance,  such  as  are  felt  at  every  dis- 
plaintiff  church  was  occasioned  by  appointment  of  one's  expectations, 
smoke,  noise,  and  odors  from  de-  if  there  is  no  actual  physical  or 
fendant's  machine  shop.  See  also  mental  injury."  On  the  facts  in 
Chicago  &  A.  R.  Co.  v.  Flagg,  the  case,  the  damages  for  "worri- 
(1867)  43  111.  364,  92  Am.  Dec.  133,  ment"  and  disappointment  result- 
a  case  of  wrongful  expulsion  from  ing  from  the  inconvenience  caused, 
defendant 's  train,  resulting  in  phys-  were  too  remote  to  be  recovered, 
leal  inconvenience  to  plaintiff.  4 — Hobbs  v.  London  &  S.  W.  Ry. 

3— Turner  v.  Great  Northern  Ry.  Co.,  (1875)  L.  R.  10  Q.  B.  111. 

185 


186  LAW  OF  DAMAGES 

rant  the  granting  of  compensation.  The  plaintiff  Has  a 
right  to  recover  for  clearly  physical  inconvenience."  To 
hold  that  inconvenience,  to  be  the  basis  of  damages,  must 
be  not  only  physical,  but  also  ascertainable  by  some 
pecuniary  standard,  is  perhaps  going  rather  far;  but  it 
has  been  so  held.*^  It  would  seem  that  inconvenience 
could  often  be  considerable,  without  being  such  as  to 
affect  the  pecuniary  means  of  the  person  wronged.  It 
is  very  difficult  to  state  a  complete  and  unfailing  general 
rule  on  the  subject,  but  it  is  safe  to  say  that  the  courts 
are  not  inclined  to  allow  substantial  damages  for  incon- 
venience, annoyance,  or  discomfort  depending  merely 
upon  the  taste  or  imagination  of  the  plaintiff  J 

CASE   ILLUSTRATIONS 

1.  A  railroad  company  negligently  carries  a  passenger  be- 
yond his  destination.  Among  the  elements  of  damage  is  incon- 
venience.^ 

2.  A  telegraph  company  instituted  condemnation  proceed- 
ings against  a  railroad  company,  in  order  to  secure  the  privi- 
lege of  constructing  a  telegraph  line  along  the  railroad's  right 
of  way.  "Any  inconvenience  or  annoyance  resulting  from  the 
construction  of  the  telegraph  line,  which  is  of  such  a  character 
as  to  interfere  in  any  way  with  the  operation  of  the  railroad 
by  reason  of  the  construction  of  the  telegraph  line,  may  prop- 
erly be  considered  by  the  jury  in  assessing  damages;  but  the 
evidence  must  disclose  the  facts  from  which  such  inconveniences 
or  annoyances  result ;  no  presumption  of  fact  can  be  drawn  that 
any  special  annoyance  or  inconvenience  will  result  solely  be- 
cause of  the  construction  of  the  telegraph  line.  * '  ^ 

5 — Southern  Kansas  By.  Co.  v.  8 — Simmons  v.  Seaboard  Air-Line 

Rice,  (1888)   38  Kan.  398,  16  Pac.  R.  Co.,   (1904)   120  Ga.  225,  47  S. 

817,  5  Am.  St,  Rep.  766.  E.   570,   1   Ann.   Cas.   777;    Dalton 

6 — Detroit   Gas    Co.    v.   Moreton  v.  Kansas  City,  F.  S.  &  M.  R.  Co., 

Truck,  etc.,  Co.,  (1897)   111  Mich.  (1908)  78  Kan.  232,  96  Pac.  475,  17 

401,  69  N.  W.  659;  Hunt  ads.  D'Or-  L.  R.  A.   (N.  S.)   1226. 

val,  (1838)  Dudley  (S.  Car.)  180.  9— Atlantic  Coaat  Line  R.  Co.  v. 

7— Cleveland     v.     Citizens     Gas  Postal  Telegraph-Cable  Co.,  (1904) 

Light  Co.,  (1869)  20  N.  J.  Eq.  201;  120   Ga.   268,  48  S.  E.   15,   1  Ann. 

Westcott   V.  Aliddleton,   (1887)   43  Cas.  734. 
N.  J.  Eq.  478,  11  Atl.  490. 


CHAPTER  XXIII 
Reputation 

89.  Injury  to  Reputation  is  usually  a  non-pecuniary 
element  of  damage;  but,  in  some  instances,  it  is  a  pe- 
cuniary element,  as  where  the  injury  is  to  one 's  financial 
reputation.^  Damage  to  reputation  appears  in  several 
types  of  cases,  notably  in  slander  and  libel.^  It  fre- 
quently figures  also  in  cases  of  malicious  prosecution.^  A 
parent  or  husband,  suing  for  the  seduction  of  a  daughter 
or  wife,  has  a  right  to  recover  for  the  disgrace  or  dis- 
honor inflicted  upon  him  and  his  family.* 

Injury  to  financial  reputation  is  a  prominent  element 
of  damage  in  actions  for  wrongfully  dishonoring  checks.^ 

In  libel,  it  is  usually  held  that  "the  defendant  may 
introduce  evidence,  in  mitigation  of  damages,  that  the 
plaintiff's  general  reputation,  as  a  man  of  moral  worth, 
is  bad,  and  may  also  show  that  his  general  reputation  is 
bad  with  respect  to  that  feature  of  character  covered  by 
the  defamation  in  question;  and,  as  to  the  admission  of 
such  evidence,  it  is  immaterial  whether  the  defendant 
has  simply  pleaded  the  general  issue,  or  has  pleaded  a 
justification  as  well  as  the  general  issue.  "^    So  also  in 

1 — Lawrence       v.        Hagerman,  5 — J.    M.    James    Co.    v.    Conti- 

(1870)  56  111.  68,  8  Am.  Rep.  674.  nental  National  Bank,   (1900)    105 

2— Swift    V.    Dickerman,    (1863)  Tenn.  1,  58  S.  W.  261,  51  L.  K.  A. 

31    Conn.    285;    Sickra    v.    Small,  255. 

(1895)    87  Me.   493,  33  Atl.   9,  47  6— Sickra   v.  Small,  supra.     See 

Am.  St.  Rep.  344.  also  Duval  v.  Davey,  (1877)  32  O. 

3_Lytton    v.    Baird,    (1883)    95  St.    604. 
Ind.  349. 

4— Matheis  v.  Mazet,  (1894)  164 
Pa,  580,  30  Atl.  434. 

187 


188  LAW  OF  DAMAGES 

slander,  the  defendant's  right  to  prove  the  bad  reputation 
of  the  plaintiff  in  mitigation  of  damages,  is  very  clear, 
on  the  same  principle  as  in  libelJ  But  a  Connecticut 
case  says:  '*No  rule  of  law  is  better  settled  that  that 
in  actions  of  slander  the  defendant  shall  not  be  permitted 
to  prove  the  truth  of  the  words  for  the  purpose  of  mitigat- 
ing the  damages.  If  the  charge  is  true,  that  may  be 
pleaded  in  justification,  and  must  be  so  pleaded,  or 
notice  of  justification  must  be  given  at  the  time  of  plead- 
ing, or  it  cannot  be  proved  upon  the  trial.*' ^ 

7— Georgia  v.  Bond,   (18»7)    114  8— Swift    v,    Dickerman,    (1863) 

Mich.   196,  72  N.  W.  232.  31  Conn.  285. 


CHAPTER  XXIV 

Loss  OF  Services 

90.  The  Master's  Right  to  Damages  —Matters  Consid- 
ered in  Computing. — The  relation  of  master  and  servant 
has  been,  from  early  times,  recognized  as  an  important 
one,  entitling  the  master  to  the  services  of  the  servant 
and  giving  him  a  right  to  have  damages  assessed  against 
any  person  committing  such  a  wrong  as  deprives  the 
master  of  the  services  of  his  servant.  Likewise,  the 
parent  has  a  right  to  the  services  of  his  minor  child,  and 
he  has  a  right,  good  against  all  except  the  child  himself, 
to  the  services  of  a  child  who  has  come  of  legal  age  and 
continues  to  live  in  the  parent's  household.  So  has  the 
husband  a  right  to  the  ser\dces  of  his  wife.  Like  the 
master,  the  father  or  the  husband  has  a  right  to  damages 
against  an}^  person  wrongfully  depriving  him  of  such 
seivices.  Loss  of  services,  as  an  element  of  compensa- 
tion, commonly  figures  in  cases  of  personal  injury  or 
seduction  of  a  child  of  the  plaintiff.  The  pecuniary  value 
of  the  services  lost  is  the  measure  of  damages  for  this 
element,  but  other  elements  of  loss  sometimes  enter  into 
the  same  case.  In  arriving  at  the  amount  to  be  awarded 
for  loss  of  services,  consideration  must  be  given  the  char- 
acter of  the  services,  the  fitness  of  the  servant  to  give 
such  services,  the  term  for  which  the  services  would  have 
been  rendered  but  for  the  tort  of  the  defendant,  and  the 
amount  usually  paid  for  such  services.^ 

1 — Further  treatment  of  this  sub-     ' '  Seduction, ' '  and  elsewhere  in  the 
ject   is   found     in    Chapter    XLIX,      treatment    of    particular    wrongs. 

189 


190  LAW  OF  DAMAGES 

CASE   ILLUSTRATIONS 

1.  A  entices  away  B,  a  servant  of  C.  The  latter  may  main- 
tain an  action  on  the  case  against  A  for  the  loss  of  B's  serv- 
ices.2 

2.  Plaintiff  brings  action  for  seduction  of  his  daughter.  Loss 
of  her  services  is  an  element  of  damage.^ 

2— Forbes  v.  Morse,  (1896)  69  3— Cook  v.  Bartlett,  (1901)  179 
Vt.  220,  37  Atl.  295.  Mass.  576,  61  N.  E.  266. 


CHAPTER  XXV 

Expenses  of  Litigation 

91.  Taxable  Expenses  of  Litigation  Limited  to  Court 
Costs. — In  the  early  days  of  the  common  law,  no  costs,  as 
such,  were  awarded  to  either  party;  but  costs  were  in- 
cluded in  the  quantum  of  damages.^  Today,  however,  a 
judgment  obtained  at  common  law  carries  with  it  court 
costs,  as  such,  consisting  of  taxable  fees  and,  as  a  general 
rule,  of  nothing  else.^  There  can  be  no  recovery  for  the 
time,  trouble  and  annoyance  incident  to  the  suit,  nor  for 
consequential  losses  accruing  because  of  it.^ 

92.  Counsel  Fees. — At  common  law,  the  successful 
party  usually  has  no  right  to  have  the  fees  of  his  attorney, 
as  such  taxed  against  his  opponent.*  The  defendant  may 
have  won  a  case  that  has  been  vexatiously  and  senselessly 
concocted  and  protracted  by  the  plaintiff ;  or  the  plaintiff 
may  have  been  victorious  in  a  case  in  which  the  defendant 
has  very  wrong-fully  put  the  plaintiff  to  the  trouble  of 
resorting  to  a  court  for  a  remedy.  Yet,  in  neither  case 
will  the  court  ordinarily  allow  counsel  fees  to  the  suc- 
cessful party.  Each  party  to  the  action  must  pay  his 
own  lawyer.  A  number  of  reasons  are  assigned  for  this 
rule,  among  which  are :  the  difficulty  in  setting  the  amount 
of  such  fees,  whether  they  be  set  by  court  or  jury ;  the 
impossibility  of  stating  accurately  the  amount  of  ex- 

1 — 3   Blackstone  399.  erally    recoverable    as    damages   in 

2 — Day    v.    Woodworth,     (1851)  another  action." — Marvin  v.  Pren- 

13     How.     363,     14     L.     ed.     181.  tice,    (1884)    94   N.   Y.   295. 

' '  Costs    usually    are    but    an    inci-  3 — 13  Cyc.  79. 

dent   of  the   litigation,  and  to  be  4 — Day   v.   Woodworth,   supra. 

disposed  of  therein,  and  not  gen- 

191 


192  LAW  OF  DAjVIAGES 

penditure  for  counsel  actually  occasioned  by  the  prosecu- 
tion or  defense  of  the  action;  and  the  impracticability 
of  determining  the  good  faith  of  the  defendant  or  the 
plaintiff. 

Counsel  fees  paid  in  prior  actions  have,  however,  often 
been  allowed  at  common  law ;  but  it  seems  that,  in  every 
instance  of  the  kind,  the  conduct  of  the  party  against 
whom  they  were  allowed,  so  directly  and  certainly  caused 
the  expenditure  for  this  purpose,  that  the  loss  of  the 
amount  so  paid  was  easily  within  such  causal  relation  to 
the  defendant's  wrong  as  to  warrant  the  assessment  of 
damages  in  compensation  for  it.^  In  an  action  for  mali- 
cious prosecution,  counsel  fees  paid  in  defense  of  the 
action  wrongfully  brought  are  clearly  such  a  loss  as  must 
constitute  a  basis  of  compensation. 

**When  actions  are  brought  to  recover  indemnity  either 
where  the  right  to  indemnity  is  implied  by  law  or  arises 
under  a  contract,  reasonable  counsel  fees  which  have  been 
incurred  in  resisting  the  claim  indemnified  against  maj'' 
be  recovered  as  a  part  of  the  damages  and  expenses. 
*  *  *  So  where  the  plaintiff,  in  consequence  of  the 
wrongful  conduct  of  the  defendant,  has  been  put  to  ex- 
pense in  the  employment  of  counsel,  the  amount  so  paid 
is  an  element  of  damage  in  an  action  against  the  defend- 
ant arising  out  of  such  wrongful  conduct. ' '  ^ 

Some  malicious  torts  have  sometimes  been  treated  as 
exceptions  to  the  general  rule  that  no  compensation  for 
counsel  fees  will  be  allowed;  but  no  satisfactory  state- 
ment of  the  principles  governing  this  branch  of  the  sub- 
ject has  ever  been  evolved  by  any  court.'^  In  some  juris- 
dictions, counsel  fees  may  be  recovered  in  cases  in  which 

5— Levitzky  v.  Canning,   (1867)  7— See  Cleveland,  C.  &  C.  R.  Co. 

33  Calif.  299.  v.  Bartram,   (1860)    11  O.  St.  457; 

6 — Sears  v.   Inhabitants   of  Na-  and   White    v.    Givens,    (1877)    29 

hant,    (1913)    215   Mass.    234,    102  La.   Ann.   571. 
N.  E.  491.   See  also  Inhabitants  of 
Westfield     v.     Mayo,     (1877)     122 
Mass.   100,  23  Am.  Rep.   292. 


EXPENSES  OF  LITIGATION  193 

exemplaiy  damages  are  given ;  ®  but  such  a  rule  seems 
to  be  founded  more  on  sentiment  than  on  principle. 

Numerous  and  varied  statutory  and  judicial  regula- 
tions as  to  costs  have  been  made  in  the  several  states.® 

93.  No  Damages  Assessed  to  Cover  Expenditures 
Made  for  Improvident  Defense  of  Previous  Action. — Al- 
though it  is  well  recognized  that  the  plaintiff  who,  in- 
nocently relying  upon  his  contract  with  the  defendant, 
defends  an  action  which  is  the  natural  and  probable  con- 
sequence of  defendant's  breach  and  which  also  proxi- 
mately results  therefrom,  is  entitled  to  recover  of  defend- 
ant the  reasonable  expenses  of  such  defense,  it  does  not 
follow  that  he  is  always  entitled  to  recover  such  expenses 
merely  because  he  has  defended.  A  defense  may  have 
been  the  best  apparent  means  of  mitigating  damages; 
but,  on  the  other  hand,  defending  the  action  may  have 
been  so  clearly  useless  as  to  amount  to  a  mere  unneces- 
sary increase  of  the  plaintiff's  loss.  In  such  a  case,  the 
plaintiff's  expenditures  in  the  defense  cannot  be  con- 
sidered a  recoverable  element  of  damage.  For  instance, 
where  A  sells  and  warrants  a  horse  to  B  as  sound,  and 
B,  relying  upon  the  warranty,  re-sells  him  to  C  with  a 
warranty  of  soundness,  and  C  sues  B  on  his  warranty, 
and  B  defends  the  action,  well  knowing  by  this  time  that 
the  horse  does  not  comply  with  the  warranty  and  that  his 
defense  will  be  in  vain,  B  cannot,  in  an  action  against 
A  on  the  warranty,  recover  his  expense  incurred  in 
defending  the  action  brought  against  him  by  C.  Knowing 
that  it  was  useless  to  defend,  he  was  needlessly  increas- 
ing his  damage,  and  the  loss  of  the  amount  of  these  ex- 
penses was  a  proximate  result  of  his  own  improvidence, 
and  not  a  proximate  result  of  the  defendant's  breach  of 
warranty.^*' 

8— Yazoa  &  M.  V.  R.  Co.  v.  Con-  man,  (1902)   114  Ga.  632,  40  S.  E. 

sumers'   Ice,   etc.,  Co.,    (1915)    109  781,  88  Am,  St.  Rep.  45. 

Miss.   43,  67   So.   657.  10— Wrightup     v.     Chamberlain, 

9— E.   g.,  see   Carhart   v.   Wain-  (Common  Pleas,  1839)  7  Scott  598. 
Bauer  Dam. — 13 


194  LAW  OF  DAMAGES 

CASE   ILLUSTRATIONS 

1.  Defendants  broke  into  plaintiff's  rooms,  and  injured  and 
destroyed  his  property.  Counsel  fees  cannot  be  allowed  plain- 
tiff as  either  compensatory  or  exemplary  damages.^! 

2.  Defendants  slandered  plaintiff's  title,  as  a  result  of  which 
wrong  plaintiff  was  obliged  to  make  a  large  outlay  in  litiga- 
tion for  the  purpose  of  getting  a  cloud  removed  from  title.  Held 
that,  in  an  action  for  slander  of  title,  the  plaintiff  may  recover 
for  his  reasonable  expenditures  in  the  suit  to  remove  the  cloud. ^^ 

3.  A  lessor  broke  his  covenant  of  quiet  enjoyment  by  bring- 
ing two  actions  against  his  lessee  to  recover  possession.  The 
lessee  may  recover,  in  an  action  for  breach  of  such  covenant, 
counsel  fees  expended  in  the  two  actions  wrongfully  brought 
by  the  lessor.^^ 

It  is  to  be  noticed  that  the  case  11 — Falk    v.    Waterman,    (1874) 

cited  goes  farther  than  the  propo-  49  Calif.  224. 

sitiorn   stated   in   the   text,  placing  12 — Chesebro   v.   Powers,    (1889) 

upon  the  plaintiff  a  duty  to  ascer-  78  Mich.  472,  44  N.  W.  290. 

tain  whether  it  is  prudent  to  make  13 — ^Levitzky  v.  Canning,  (1867) 

a  defense.  33  Calif.  299. 


CHAPTER  XXVI 

Intekest 

94.  In  General. — The  law  as  to  interest  as  damages  is 
so  varied  in  different  jurisdictions  and  has  so  many 
phases,  that  only  a  few  of  the  most  general  principles 
can  be  stated  here.  The  early  common  law  did  not  favor 
the  allowance  of  interest  except  where  it  was  expressly 
stipulated  for.  With  the  growth  of  modem  business 
usage,  it  has  come  to  be  so  important  and  so  usual  to 
allow  compensation  for  the  use  of  money,  that  interest  is 
now  allowed  in  many  instances  in  which  no  negotiable 
instrument  or  other  express  promise  to  pay  interest  is 
involved. 

95.  On  Liquidated  and  Unliquidated  Sums. — In  some 
cases,  it  is  very  usual  to  allow  interest  as  damages,  as, 
for  instance,  where  the  defendant  has  failed  to  pay  the 
plaintiff  a  certain  agreed  sum  due  at  a  certain  time.  In 
such  a  case,  it  is  clear  that  the  damage  to  the  plaintiff 
is  the  value  of  the  use  of  his  money,  which  is  the  interest. 
On  a  demand  for  any  sum  stated  or  liquidated  by  agree- 
ment between  the  parties,  interest  at  the  legal  rate  from 
the  time  of  default  is  allowed  as  damages.^  Some  courts, 
however,  hold  that,  where  a  party  fails  to  pay  a  negoti- 
able instrument  at  maturity,  the  contract  rate  of  interest 
continues  after  maturity ;  ^  but  such  a  rule  is  not  founded 
on  principle,  as  the  interest  for  the  period  after  default 

1— Holden    v.    Freedman's    Sav-  2— Cecil    v.    Hicks,     (1877)      29 

ings,   etc.,   Co.,    (1879)    100    U.    S.  Gratt.    (Va.)    1. 
72,    25   Lr.    ed.    567;    McCreery    v. 
Green,  (1878)  38  Mich.  172. 

195 


196  LAW  OF  DAJVIAGES 

is  damages  and  is  not  based  upon  terms  of  the  agreement 
at  all. 

As  a  general  rule,  interest  is  not  allowed  on  unliqui- 
dated demands  or  damages.^  The  terms  "liquidated" 
and  ** unliquidated"  are  not  used  with  satisfactory  uni- 
formity in  this  connection.*  There  has  been  a  tendency 
manifested  in  some  courts  to  do  what  they  believed  to 
be  justice,  by  compensating  a  plaintiff  for  a  delay  in  the 
payment  of  what  is  not  strictly  a  liquidated  sum.  Some 
icourts  have  effected  this  result  by  stretching  the  mean- 
ing of  ** liquidated"  practically  into  ''easily  ascertain- 
able." Others  have  loosely  allowed  interest  on  account 
of  the  circumstances  of  the  case.  One  court  has  boldly 
said  that  interest  will  be  allowed  where  the  evidence  is 
so  exact  and  definite  as  to  the  amount  of  damage  and  its 
elements  that  it  requires  only  a  simple  computation  by 
the  jury  to  fix  the  amount.^  ''There  is  authority  that 
goes  to  the  extent  of  saying  that  the  distinction  between 
liquidated  and  unliquidated  demands  is  practically  ob- 
literated, and  that  whenever  a  verdict  liquidates  a  claim 
and  fixes  it  as  of  a  prior  date,  interest  should  be  allowed 
on  the  claim  from  that  date." ^    It  is  submitted  that  this 

3 — Cox    V.    McLaughlin,    (1888)  Rep.    239.     "Whenever   it   is   as- 

76  Calif.  60,   18  Pae.   100,  9  Am.  certained  that  at  a  particular  time 

St.  Rep.  164;  Pearson  v.  Byan,  (R.  money   ought   to   have   been   paid, 

I.    1919)    105   Atl.   513.  whether  in  satisfaction  of  a  debt, 

4 — "This      term      'unliquidated  or   as   compensation   for  a   breach 

damages'  applies  equally  to  cases  of  duty,  or  for  the  failure  to  keep  a 

of  tort,  as  slander,  assault  and  bat-  contract,    interest    attaches   as   an 

tery,    etc.,    and    to    cases    upon    a  incident." — State   v.   Lott,   (1881'^ 

quantum  meruit,  for  goods  sold  and  69  Ala.  147.    It  will  be  noticed  that 

delivered,     or     services    rendered.  this  is  a  very  broadly  stated  rule; 

The   reason   for  such   a  denial   of  but,  even  as  stated,  it  seems  just 

interest    is    said    to   be    that    the  and  sound.     In  so  far  as  it  aJlows 

person  liable  does  not  know  what  interest    on    entirely    unliquidated 

sum  he  owes,  and  therefore  can  be  damages    and    demands,   it    is    op- 

in  no  default  for  not  paying." —  posed  to  the  weight  of  authority. 
Cox  V.  McLaughlin,  supra.  6 — 8  R.   C.   L.  533,  citing  Sulli- 

5 — Sullivan  v.  McMillan,  (1896)  van   v.   McMillan,   supra. 
37  Pla.  134,  19  So.  340,  53  Am.  St. 


INTEREST  197 

rule  is  correct  on  principle,  as  there  seems  to  be  no  reason 
why,  from  the  day  on  which  a  court  gives  judgment,  the 
sum  for  which  judgment  is  given  should  not  be  regarded 
as  a  liquidated  amount  due. 

96.  Statutory  Rules. — Some  states  have  statutes  per- 
mitting a  jury  to  allow  legal  interest,  in  its  discretion, 
in  a  tort  case  wherein  malice,  fraud,  or  oppression  is 
shown,  making  its  allowance  somewhat  like  that  of  ex- 
emplary damages.  This  is  only  an  example  of  the  many 
statutory  provisions  made  for  the  allowance  of  interest 
in  various  kinds  of  cases.  Such  provisions,  whether  wise 
or  not,  have  added  much  to  the  already  great  confusion 
brought  about  by  conflicting  common  law  holdings  on  the 
subject. 

CASE   ILLUSTRATIONS 

1.  A  converts  B's  hay.  Held,  that  B  may  recover  interest. 
"Interest  is  to  be  allowed,  as  of  legal  right,  from  the  time  at 
which  the  value  is  estimated. ' '  "^ 

2.  Plaintiff  sued  defendant  for  severe  negligent  personal  in- 
juries, including  the  loss  of  a  leg.  The  verdict  assessed  dam- 
ages at  $7,000,  with  7  years'  interest,  $2,940,  aggregating  $9,940. 
Held,  error  to  allow  interest.^ 

3.  Defendant  in  good  faith  defended  a  suit  against  plaintiff, 
an  employee,  for  his  salary,  and  thus  delayed  payment  for  a 
long  time.    Held,  that  plaintiff  cannot  get  interest  on  his  salary.^ 

4.  Defendant  broke  his  warranty  in  the  sale  of  goods  to  plain- 
tiff. "We  think  that  the  referee  erred  in  giving  plaintiff  in- 
terest on  the  damages  that  he  sustained  by  reason  of  the  breach 
of  warranty."  ^^ 

7— Hamer  v.  Hathaway,   (1867)  ing  Co.,  (1895)  17  Mont.  90,  42  Pac. 

33   Calif.    117.  108. 

8 — Louisville  &  N.  E.  Co.  v.  Wal-  10 — Riss  v.  Messmore,   (1890)   9 

lace,  (1891)  91  Tenn.  35,  17  S.  W.  N.  Y.  Supp.  320,  58  N.  Y.  Super. 

882,  14  L.  R.  A.  548.  Ct.  23. 

9 — Nixon  V.  Cutting  Fruit-Pack- 


PAJRT  III 

DAMAGES  IN  CONTRACT  ACTIONS  AND 
PARTICULAR  CLASSES  THEREOF 

CHAPTER  XXVII 
Contracts  in  Geneeal. 

97.  General  Principles. — The  basis  of  an  action  in  con- 
tract is  widely  different  from  that  of  an  action  in  tort, 
and  therefore  its  purpose  is  different.  The  law  endeavors 
to  place  the  plaintiff  in  a  tort  case  in  a  position  as  nearly 
as  possible  the  same  as  he  would  have  occupied  if  the 
tort  had  never  occurred;  but  in  contract,  the  law  does 
not  attempt  merely  to  place  the  plaintiff  where  he  would 
have  been  if  the  contract  had  never  been  made,  if  it  is 
possible  to  give  him  the  benefit  of  the  contract.^ 

Liability  and  the  measure  of  damages  in  contract  are, 
like  all  other  matters  of  contractual  relation,  governed 
by  the  express  or  implied  intention  of  the  parties.  One 
will  avoid  much  confusion  and  gain  much  satisfaction  by 
keeping  clear  in  one's  mind  the  fact  that  the  question 
what  is  the  extent  of  the  liability  of  a  defendant  in  an 
action  on  a  contract  is  merely  a  question  of  the  general 
law  of  contract,  governed  by  the  broad  general  principle 
that  the  obligation  of  the  parties  is  determined  by  their 
intention  as  expressed  in  their  agreement  or  implied  by 
their  acts  and  the  circumstances.  No  peculiar  and  dis- 
tinct rule,  difficult  to  learn  or  to  apply,  fences  off  the 
law  of  damages  in  contract  from  the  rest  of  the  law  of 

1 — Masterton  v.  Mayor,  etc.,  of 
Brooklyn,  (1845)  7  HiU  (N.  Y.)  61, 
42  Am.  Dec.  38. 

199 


200  LAW  OF  DAMAGES 

contract.  The  extent  of  the  liability  of  the  parties  to  a 
contract  cannot  be  more  or  less  than  they  have  had  in 
contemplation  or  are  presumed  to  have  had  in  contempla- 
tion at  the  time  of  the  making  of  the  contract. 

Wherever  it  is  possible  to  do  so,  the  law  seeks  to  place 
the  plaintiff  in  a  position  similar  to  that  in  which  he 
would  have  been  if  the  contract  had  been  fulfilled  by 
the  defendant ;  and  this  it  does  by  giving  him  what  would 
have  been  the  net  value  of  the  contract  to  him  if  it  had 
been  performed.  In  some  cases,  it  is  impossible  to  prove 
the  net  value  of  the  contract  to  the  plaintiff;  and  so  the 
defendant  has  contended,  because  of  the  plaintiff's  in- 
ability to  prove  the  amount  of  his  loss,  that  only  nominal 
damages  should  be  assessed.  This  contention,  which,  if 
sustained,  would  effectually  protect  the  breaker  of  the 
contract  in  a  very  large  number  of  instances,  finds  no 
favor  with  the  courts.  Where  the  net  value  of  the  con- 
tract is  incapable  of  proof,  the  plaintiff  recovers  the 
amount  of  his  actual  expenditure  in  preparing  to  per- 
form.2 

Damage  is  not  the  gist  of  the  action  for  breach  of  a 
contract.  Plaintiff  shows  a  right  of  recovery  when  he 
proves  a  breach;  and  be  can  recover  nominal  damages, 
if  he  fail  to  prove  any  damage.^ 

In  a  legal  sense,  a  loss  may  be  sustained  through  the 
breach  of  a  contract,  although  it  can  be  shown  that  the 
performance  would  have  been  a  positive  injury,  as  in 

2 — ^United      States     v.      Behan,  complaining    should,    so    far    as    it 

(1884)    110    U.    S.    338,   28   L.    ed.  can  be  done  by  money,  be  placed 

168,  4  Sup.  Ct.  81.  in  the  same  position  as  he  would 

3— Marzetti  v,  Williams,   (1830)  have  been  in  if  the  contract  had 

1  B.  &  Ad.  415,  109  Eng.  Kepr.  842,  been     performed.  "—Werthein      v. 

3  E.  R.  C.   746;   Lowe  v.  Turpie,  Chicoutimi  Pulp  Co.,  [1911]   A.  C. 

(1896)    147  Ind.  652,  44  N.  E.  25,  301,  7  B.  R.  C.  315. 

37  L.  R.  A.  233.  This   is   true,   whether   the   con- 

"It  is  the  general  intention  of  tract  be  express  or  implied.     Mar- 

the  law   that,   in   giving   damages  zetti   v.  Williams,   supra. 
far  breach  of  contract,  the  party 


CONTRACTS  IN  GENERAL  201 

case  of  failure  to  erect  a  useless  structura  on  the  land 
of  the  other  contracting  party.'* 

Breach  of  an  agreement  to  drill  a  test  well  for  oil, 
supports  the  assessment  of  damages,  although  it  does 
not  appear  whether  plaintiff  would  have  found  any  oil, 
the  purpose  of  the  test  well  being  merely  to  ascertain 
whether  there  was  oil.^ 

The  net  value  of  the  contract  to  the  plaintiff  is  the 
gross  value  of  the  benefits  anticipated,  minus  the  amount 
of  actual  expenditure  by  the  plaintiff  in  preparation  to 
perform.® 

98.  Entirety  of  Recovery. — In  contract,  as  in  tort,  the 
plaintiff  must  recover  for  all  elements  of  damage,  past, 
present,  and  future,  in  one  action,"^  unless  the  contract 
is  divisible  and  the  breach  or  breaches  thereof  constitute 
a  continuing  wrong  or  series  of  wrongs,  so  as  to  give 
rise  to  successive  rights  of  action  for  successive  injuries 
inflicted  thereby.*  Damages  assessed  to  cover  all  losses, 
whether  they  have  already  accrued  or  may  accrue  later 
as  results  of  the  breach,  are  known  as  entire  damages. 

99.  Profits. — As  a  general  rule,  profits  to  be  made  on 
another  and  future  transaction  cannot  be  recovered  as  an 
element  of  damages  for  the  breach  of  a  contract,  being 

4 — Chamberlain        v.        Parker,  to  the  cause  of  action  declared  on, 

(1871)  45  N.  Y.  569;  Ardizonne  v.  such  damages  are  to  be  assessed  if 

Archer,  (Okla.  1919)  178  Pac.  263.  they  are  sustained  up  to  the  time 

5 — Ardizonne   v.   Archer,    (Okla.  of  the  verdict,  and  even  in  some 

1919)   178  Pac.  263.  cases    indefinitely    beyond;    but    if 

6 — Masterton  v.  Mayor,  etc.,  of  the    damages    sustained    after    the 

Brooklyn,    (1845)    7    Hiil    (N.   Y.)  date  of  the  writ  are   such   as  are 

61,  42   Am.   Dec.  38.  not  merely  incidental  to  and  grow- 

7 — ^Parker  v.  Eussell,  (1882)  133  ing  out  of  the  cause  of  action,  but 

Mass.  74;  Jewett  v.  Brooks,  (1883)  may  be  the  damages  arising  from 

134   Mass.    505.  a  new  breach   or  a  new  cause  of 

8 — "The  rule    is    this:     If    the  action,     they     cannot    be    so    as- 

damages    subsequent    to    the    date  sessed. " — Lord,     J.,     in     Fay     v, 

of  the  writ  are  merely  incidental  Guynon,  (1881)    131  Mass.  31. 


202  LAW  OP  DALIAGES 

considered  too  remote  and  not  within  the  contemplation 
of  the  parties.  Profits  on  a  future  transaction  can  be 
recovered  only  if  there  is  proof  that  the  loss  of  profits 
claimed  is  a  loss  which  must  proximately  arise  from  its 
breach,  and  which  must  have  been  contemplated  by  the 
parties  when  the  contract  was  made.^ 

Where  defendant,  a  producer  of  motion  picture  films, 
breaks  its  contract  to  supply  certain  ' '  first-run  feature ' ' 
films,  once  a  week  to  plaintiff's  theater,  and  plaintiff  is 
able  to  get  second  or  third  run  feature  films,  it  is  held 
that  plaintiff  cannot  prove  the  amount  of  profits  lost  by 
showing  what  his  profits  were  on  other  pictures,  supplied 
by  other  producers  before  and  after  the  breach,  nor  by 
showing  the  amount  of  profits  made  by  other  theaters  in 
other  parts  of  the  city,  where  "first-run  feature"  films 
were  exhibited  daily.^^ 

100.  Anticipatory  Breadi. — Where  one  party  con- 
tracts to  do  a  certain  thing  for  another  on  a  specified 
day,  and  simply  breaks  his  contract  on  the  day  set  for 
performance,  it  is  easy  to  say  what  day  is  the  date  as  of 
which  damages  must  be  assessed;  but  where  one  party, 
before  the  date  set  for  performance,  commits  such  an  act 
as  constitutes  an  attempt  or  offer  to  break  the  contract, 
and  the  attempt  is  acted  upon  or  the  offer  accepted  by 
the  other  party,  we  have  what  is  known  as  an  "antici- 
patory breach,"  for  which  the  measure  of  damages  is  a 
disputed  matter.  As  a  general  rule,  damages  in  contracts 
are  assessed  as  of  the  day  of  the  breach,  which  is  also 
the  day  set  for  performance ;  and,  strictly  speaking,  there 
can  be  no  breach  before  the  date  stipulated  for  perform- 
ance; but,  in  the  case  of  an  "anticipatory  breach,"  the 

9— Fox    V.    Harding,    (1S51)     7  10— Broadway  Photoplay  Co.   v. 

Cush.     516;     Somers     v.     Wright,  World    Film    Corporation,    (1919") 

(1874)    115   Mass.   292;    Masterton  225  N.  Y.  104,  121  N.  E.  756. 
V.  Brooklyn,   (1845)   7  Hill  61,  42 
Am.  Dec.  38. 


CONTRACTS  IN  GENERAL  208 

contract  is  simply  terminated  wrongfully  before  the  time 
set  for  the  parties  to  perform.  Such  premature  renuncia- 
tion may  be  treated  as  a  breach,  and,  according  to  the 
weight  of  authority,  may  be  sued  upon  at  once.^^  As  the 
party  wronged  loses  the  benefit  of  having  the  contract 
performed  on  the  date  stipulated  for  performance,  his 
damages  are,  on  principle,  measured  as  of  that  date,  and 
not  as  of  the  date  of  the  so-called  breach,  unless  special 
circumstances  alter  the  amount  of  damage.  This  is  the 
usual  view.^2  The  defendant  has  wrongfully  destroyed 
the  contract,  of  which  the  value  to  the  plaintiff  would 
ordinarily  be  the  value  of  performance  on  the  stipulated 
day. 

Some  courts,  however,  have  taken  the  view  that  dam- 
ages must  be  assessed  as  of  the  date  of  the  anticipatory 
breach.  The  comparative  ease  of  thus  assessing  damages 
has  unquestionably  influenced  the  courts  adopting  the 
minority  rule.^^ 

Although  it  is  very  questionable  whether,  on  strict 
principle,  a  mere  notice  of  a  party,  before  time  for  per- 
il— See  Hochster  v.  De  la  Tour,      elects     to     consider     it     in     that 
(1853)  2  El.  &  Bl.  678,  22  L.  J.  Q.      light,    the    market    price    on    the 
B.  455-460,  6  E.  E.  C.  570.  day  of  the  breach  is  to  govern  in 

12 — Roper  v.  Johnson,  (1873)  the  assessment  of  damages.  In 
L.  R.  8  C.  P,  167.  other   words,   the    damages   are   to 

"The  plaintiff  is  entitled  to  com-  be  settled  and  ascertained  accord- 
pensation  based,  as  far  as  possi-  ing  to  the  existing  state  of  the 
ble,  on  the  ascertainment  of  what  market  at  the  time  the  cause  of 
he  woruld  have  suffered  by  the  con-  action  arose,  and  not  at  the  time 
tinued  breach  of  the  other  party  fixed  for  full  performance.  The 
down  to  the  time  of  complete  per-  basis  upon  which  to  estimate  the 
formance,  less  any  abatement  by  damages,  therefore,  is  just  as  fixed 
reason  of  circumstances  of  which  and  easily  ascertained  in  cases  like 
he  ought  reasonably  to  have  availed  the  present,  as  in  actions  predi- 
himself." — Roehm  v.  Horst,  (1900)  cated  upon  a  failure  to  perform 
178  U.  S.  1,  44  L.  ed.  953,  20  Sup.  at  the  day. "— Masterton  v.  Mayor 
Ct.  780.  of  Brooklyn,  (1845)  7  Hill  (N.  Y.) 

13 — "Where         the         contract      61,    42    Am.    Dec.    38.      The    legal 
*     *     *     is  broken  before  the  ar-      proposition   herein   contained   does 
rival    of    the    time    for    full    per-      not    seem    sound    on    principle, 
formance,  and  the  opposite  party 


204  LAW  OF  DAMAGES 

formance,  that  he  is  not  going  to  perform,  is  a  breach  at 
all,  before  acted  upon  by  the  other  party,  it  seems  neces- 
sary, in  many  cases,  to  treat  it  as  such,  for  the  purpose 
of  placing  upon  plaintiff  a  duty  to  avoid  unnecessary 
damage.  Where  a  vendee,  before  time  set  for  delivery, 
cancels  his  contract,  it  is  held,  by  an  overwhelming  weight 
of  authority,  that  there  is  a  breach,  putting  upon  the 
vendor  the  duty  to  avoid  unnecessary  loss,  and  that  the 
vendor  cannot  recover  the  purchase  price  as  such. 

For  instance,  A  contracts  to  buy  a  machine  of  B. 
Later,  A  gives  B  notice  of  his  unconditional  cancella- 
tion of  the  contract.  B  refuses  to  accept  this  cancella- 
tion, and  sends  the  machine  to  A.  B  cannot  recover  the 
price  of  the  machine  or  freight  thereon,  but  can  recover 
for  only  such  losses  as  he  has  sustained  as  a  natural  and 
probable  result  of  the  breach.^* 

The  plaintiff  may,  of  course,  in  any  of  these  cases,  wait 
until  the  arrival  of  the  time  set  for  performance,  and 
then  sue  and  recover  for  his  actual  damage,  which  is 
usually  then  easier  to  compute  than  at  the  time  of  the 
anticipatory  breach. 

101.  Partial  Performance. — ^Where  the  plaintiff  has 
partly  performed  the  contract  and  has  been  wrongfully 
prevented  by  the  defendant  from  performing  in  full,  the 
plaintiff  may  elect  to  recover  either  the  net  value  of  the 
contract  or  the  value  of  the  service  rendered  or  thing 
transferred  to  the  defendant  or  the  amount  of  money 
expended  under  the  contract. ^'^    In  such  a  case  he  may 

14 — Hart-Parr     Co.     v.     Finley,  Greenwall    Theatrical    Circuit    Co. 

(1915)  31  N.  Dak.  130,  153  N.  W.  v.  Markowitz,  (1904)   97  Tex.  479, 

137,   Ann.   Cas.   1917  E   706.  79  S.  W.  106fl,  65  L.  R.  A.  302. 

See    also     Hosmer     v.     Wilson,  15 — Valente  v.  Weinberg:,  (1907) 

(1859)    7   Mich.   294,   74  Am.  Dec.  80   Conn.    134,   67   Atl.  369;    Hem- 

716;  Holt  V.  United  Security,  etc.,  minger  v.  Western  Assurance  Co., 

Co.,  (1909)  76  N.  J.  Law  585,  72  (1893)  95  Mich.  355,  54  N.  W.  949. 
Atl.  301,  21  L.  B.  A.  (N.  S.)  691; 


CONTRACTS  IN  GENERAL  205 

recover  the  actual  value  of  what  he  has  done,  even  though 
such  value  be  in  excess  of  the  contract  rate.^® 

But  a  different  situation  arises  where  the  plaintiff  has 
been,  without  any  fault  of  himself  or  defendant,  pre- 
vented from  fully  performing  the  whole  contract.  Just 
as  a  party  or  the  parties  to  a  contract  are  sometimes 
excused  from  performing  any  part  of  a  contract  at  all, 
so  a  failure  to  complete  performance  may  be  excused, 
when  only  part  of  the  work  under  the  contract  has  been 
accomplished ;  and  thus  a  situation  comes  about  in  which 
it  is  both  logical  and  necessary  that  a  recovery  be  allowed 
for  part  performance,  but  unnecessary  and  unjust  that 
the  net  value  of  the  entire  contract  be  allowed."  Under 
such  circumstances,  the  plaintiff  who  has  partly  per- 
formed is  entitled  to  recover  on  a  quantum  meruit  the 
value  of  what  he  has  already  done,  unless  to  allow  this 
would  be  to  compensate  him  at  a  higher  rate  than  that 
allowed  by  the  contract,  in  which  case  he  is  entitled  to 
recover  only  a  part  of  the  stated  consideration  in  the 
same  proportion  to  the  whole  consideration  as  his  part 
performance  bears  to  full  performance.^*  But  where  a 
contract  is  entire,  and  one  party  is  willing  to  complete 
the  performance  and  is  not  in  default,  and  the  other  party 
violates  the  contract  by  failing  or  refusing  to  perform, 
the  violator  cannot  recover  on  a  qtiantum  meruit  for  what 
he  has  done.^^     It  was  formerly  held  that,  where  the 

16 — Hemminger   v.   Western   As-  were  operating  at  a  lorss,  they  had 

aurance     Co.,    supra;     Doughty    v.  the    option    to    complete    the    con- 

O'Donnell,  (1871)  4  Daly  (N.  Y.)  tract,   recover    the   contract    price, 

60.  and  submit  to  the  loss,  or  to  aban- 

17 — Doster  v.  Brown,   (1858)   25  don    the    contract,    lose    the    work 

Ga.   24,  71   Am.   Dec.    153.  they  had  done,  and  be  subject  to 

18 — Walsh  V.  Fisher,  (1899)   102  whatever  damages  might  be  recov- 

Wis.    172,    78    N.    W.    437,    43    L.  erable  for  the  breach  orf  the  con- 

R.  A.  810.  See  also  Clark  v.  Frank-  tract.     *     *     *     It  would  be  obvi- 

lin,  (1836)  7  Leigh  (Va.)  1.  ously    inconsistent    with     common 

19 — Galvin    v.    Prentice,    (1871)  justice  that  plaintiffs  should  reeov- 

45  N.  Y.  162,  6  Am.  Rep.  58.  er  pro  tanto  on  the  contract  which 

"When    they    found    that    they  they  had   substantially  violated." 


sod  LAW  OF  DAMAGES 

service  contracted  for  is  entire  and  the  contractor  is, 
without  fault  of  either  party,  rendered  unable  to  com- 
plete his  performance  after  performing  part  of  the  serv- 
ice, he  could  not  recover  on  a  quantum  meruit  for  what 
services  he  had  already  performed  ;2<*  but  the  modern 
American  holdings  modify  this  doctrine  to  the  extent  of 
saying  thatj  where  an  act  of  God,  such  as  an  unantici- 
pated illness,  prevents  an  employee  under  a  contract  from 
completing  his  service,  he  may  recover  on  a  qitantum 
meruit  for  what  services  he  has  rendered.^^ 

Where  the  plaintiff  has  entered  into  a  special  contract 
to  perform  certain  work  for  the  defendant,  and  to  furnish 
materials,  and  the  work  is  done  and  the  materials  are 
furnished,  but  not  in  the  manner  agreed  upon,  the  plain- 
tiff cannot  recover  the  agreed  price ;  but,  as  the  work  and 
materials  are  of  some  benefit  to  the  other  contracting 
party,  the  plaintiff  may  recover  on  a  quantum  meruit  for 
the  work  done  and  the  materials  furnished,  if  the  defend- 
ant has  not  prohibited  the  plaintiff  from  proceeding  with 
the  work  and  has  not  rejected  it.^^ 

102.  Complete  Performance. — Where  the  plaintiff  has 
fully  performed  and  the  defendant's  breach  of  the  con- 
tract comprises  nothing  but  a  total  failure  to  pay  the 
plaintiff  a  certain  sum  agreed  upon  in  the  contract,  the 
measure  of  damages  is  such  sum.^^  In  cases  wherein  the 
plaintiff  has,  at  the  request  of  the  defendant,  done  a  cer- 
tain service  or  delivered  a  certain  thing  to  become  the 
property  of  the  defendant,  with  no  agreement  as  to  the 
amount  to  be  paid  by  the  defendant  therefor,  the  law 

—Johnson    v.    Fehsefeldt,     (1908)  22— Katz  v.  Bedford,   (1888)    77 

106  Minn.  202,  118  N.  W.  797,  20  Calif.  319,  19  Pae.  523,  1  L.  E.  A. 

L.  E.  A.   (N.  S.)    1069.  826;   Hayward  v.  Leonard,   (1828) 

20— Cutter   v.    Powell,    (1795)    6  7  Pick.   (Mass.)    181,  19  Am.  Dec. 

T.  E.  320,  6  E.  E.   C.  627,  2  Sm.  268. 

L.  Cas.  1.  23— Puritan    Coke   Co.   v.    Clark, 

21— Wolf    V.    Howes,    (1859)    2Q  (1903)  204  Pa.  556,  54  Atl.  350. 
N.  Y.  197. 


CONTRACTS  IN  GENERAL  207 

implies  an  obligation  to  pay  the  reasonable  value  of  the 
service  or  thing. ^^ 

103.  Direct  and  Consequential  Damages.^^ — ^Here,  as 
in  tort,  damages  for  direct  injury  are  always  recoverable. 
Here  also,  as  in  tort,  consequential  damages  cannot  al- 
ways be  recovered,  being  a  recoverable  element  of  dam- 
age only  when  proximate.^^  The  question  of  proximity 
of  cause  does  not,  however,  arise  so  often  in  contract  as 
does  the  question  of  naturalness  and  probability.  As 
contract  rights  are  based  upon  the  express  or  implied 
intention  of  the  parties,  and  it  does  not  seem  likely  that 
they  have  intended  that  one  of  the  parties  should  become 
liable  for  an  injurious  result  such  as  did  not,  at  the  time 
of  the  making  of  the  contract,  appear  sufficiently  natural 
and  probable  to  be  contemplated  by  them  as  a  possible 
result  of  a  breach,  it  follows  that  consequential  damages 
can  be  recovered  only  for  damage  that  is  a  natural  and 
probable  consequence  of  the  breach.^'^  A  large  part  of 
the  difficulty  attending  the  study  and  practice  of  the  law 
of  damages  in  contract  arises  in  cases  involving  conse- 
quential damages.  The  parties  always  contemplate,  or 
must  be  taken  to  have  contemplated,  the  direct  results  of 
a  breach;  but  no  rule  of  law  can  ever  afford  any  real 
guidance  as  to  naturalness  and  probability  in  particular 
cases.  Here,  as  in  regard  to  proximity,  each  case  is,  in 
a  measure,  a  creature  standing  on  its  own  feet. 

104.  Damages  Upon  Failure  of  Consideratian. — ^Where 
one  party  expressly  agrees  to  do  a  stipulated  act  for  the 
other  party  to  a  contract  or  to  deliver  a  stipulated  thing 
to  him,  and  does  nothing  or  delivers  a  worthless  article 
instead  of  the  one  agreed  upon,  the  other  party  may 

24— Aeebal   v.   Levy,    (1834)    10  Tel.   Co.,    (1870)    41   N.   Y.   544,    1 

Bing.  376,  131  Eng.  Eepr.  949^.  Am.   Kep.   446. 

25— See  Chapter  IV.  27— Hadley  v.  Baxendale,  (1854) 

26— Leonard  v.  New  York,  etc.,  9  Exch.   341,  5  E.  E.   C.  502. 


208  LAW  OF  DAIMAGES 

either  sue  for  damages  on  the  express  contract  or  rescind 
the  contract,  return  any  article  he  has  received  under 
the  contract,  and  recover  back  any  sum  he  has  paid,  with 
interest  thereon.^^  If  he  does  the  latter,  he  is  relying, 
not  upon  the  express  contract,  but  upon  the  implied  con- 
tractual obligation  of  the  unjustly  enriched  party  to  re- 
fund, irrespective  of  the  contractual  relations  of  the 
parties  as  they  have  grown  out  of  their  express  agree- 
ment. 

105.  Both  Parties  in  Default. — Where  one  party  is  not 
ready  and  willing  to  perform  on  his  part,  and  the  other 
party  cannot  perform,  neither  party  causes  the  other 
party  any  loss,  and  so  no  damages  can  be  assessed.^®  In 
such  a  case,  theoretically,  each  party  may  claim  nominal 
damages  of  the  other;  but,  in  actual  practice,  so  idle  a 
procedure  would  not  be  followed.^** 

106.  Non-Pecuniary  Elements. — Seldom  do  non-pecu- 
niary elements  of  damage  figure  in  an  action  upon  a  con- 
tract. This  is  not  because  there  is  any  rule  that  such 
elements  can  never  be  taken  into  account  in  contract,  as 
is  sometimes  erroneously  supposed;  but  it  is  rather  be- 
cause such  elements  are  usually  either  not  proximate 
results  or  are  not  such  results  as  are  properly  to  be  re- 
garded as  having  been  within  the  contemplation  of  the 
parties  as  natural  and  probable  results  of  a  breach.  Such 
non-pecuniary  elements  as  physical  pain  and  mental  suf- 
fering are  seldom,  if  ever,  proximate  results  of  a  breach 
of  an  ordinary  business  contract ;  nor  can  it  be  said  that 
the  parties  to  such  a  contract  ever  intend  to  assume  the 
burden  of  compensating  each  other  for  such  elements  as 
these,  in  the  event  of  a  breach.    As  is  seen  in  our  chapter 

28— Pope    V.    Campbell,     (1805)  30— See  Suth.  Dam.  §  703. 

Hardin   (Ky.)   34,  3  Am.  Dec.  722. 

29 — Nelson     v.     Plimpton,    etc., 
Co.,   (1874)   55  N.  Y.  480. 


CONTRACTS  IN  GENERAB  209 

on  mental  suffering,^  ^  however,  there  are  some  contracts 
of  such  a  nature  as  to  make  mental  suffering  so  likely  a 
result  of  a  breach  that  it  may  properly  be  considered  as 
an  element  of  damage ;  but  most  contracts  are  not  of  this 
kind.  Besides,  exemplar}''  damages,  even  in  jurisdictions 
Avhere  they  are  allowed  in  tort,  are  not  assessed  in  purely 
contractual  actions;  and  so  the  question  of  malice,  "will- 
fulness, or  evil  motive,  has  no  real  place  in  this  field. 
Breach  of  promise  may  seem  to  constitute  an  exception ; 
but,  as  such,  it  is  more  apparent  than  real,  since,  for  most 
purposes,  it  is  treated  as  a  tort.  Likewise,  in  studying 
the  cases  in  contract  against  carriers,  wherein  exemplary 
damages  have  sometimes  been  allowed,  it  must  be  borne 
in  mind  that,  because  the  carrier  has  violated  a  common 
law  dutj^  the  plaintiff  could  have  sued  him  in  tort,  in 
which  case  exemplary  damages  could  have  been  allowed 
anyway ;  and  so  the  cases  of  this  kind  are  more  anomalous 
in  form  than  in  substance.  Everj'^thing  considered,  non- 
pecuniar}"  elements  of  damage  play  a  very  small  part  in 
contract  actions. 

107.  Avoidable  Consequences.  —  A  person  who  is 
wronged  by  the  breach  of  a  contract  is  bound  to  take  rea- 
sonable measures  to  avoid  or  lighten  his  loss,  just  as  he 
would  be  under  a  duty  to  take  reasonable  precautions 
to  prevent  or  mitigate  damage  if  he  were  tortiously  in- 
jured.^2  Where  an  employer  wrongfully  discharges  an 
employee  during  the  agreed  period  of  service,  the  em- 
ployee is  under  a  duty  to  make  his  loss  as  light  as  pos- 
sible by  making  reasonable  efforts  to  secure  similar  em- 
ployment.^^ So  also,  where  the  plaintiff  has  contracted 
to  do  a  specific  piece  of  work  for  the  defendant  and  the 

31 — Chapter   XXI.  ter  XXIX,  "Sales  and  Contracts  to 

33— See  the  following:    Chapter  Sell." 

V,     "Avoidable     Consequences;"  33 — Sutherland  v.  Wyer,   (1877) 

Chapter   XXXI,     "Contracts     for  67  Me.  64;  Howard  v.  Daly,  (1875) 

Work   and   Services;"    and    Chap-  61  N.  Y.  362,  19  Am.  Eep.  285. 
Bauer  Dam. — 14 


210  LAW  OF  DAIVIAGES 

latter  has  notified  the  former  that  he  desires  to  have 
work  cease,  the  plaintiff  cannot  continue  work  and  charge 
the  defendant  therefor ;  ^^  in  such  a  case,  he  must  cease 
work,  and  he  may  then  recover  damages  assessed  on  the 
basis  stated  earlier  in  this  chapter.^^  The  same  general 
principle  as  to  avoidable  consequences  prevails  through- 
out the  law  of  damages  in  contracts. 

108.  Interference  with  Contract  or  with  Right  to  Con- 
tract.— A  subject  as  yet  little  developed  in  case  law  is  the 
tort  known  as  interference  with  contract  or  with  the 
right  to  contract.  Most  instances  of  interference  with  a 
contract  or  inducements  not  to  make  a  contract  are  simply 
cases  of  damnum  absque  injuria.  A  has  a  contract  with 
B,  by  which  A  is  to  furnish  B  certain  goods.  C,  without 
malice,  and  merely  in  the  course  of  his  business,  offers 
B  similar  goods  for  less  money,  before  delivery  by  A. 
B  buys  of  C  and  notifies  A  of  his  rescission.  C  has 
committed  no  legal  wrong  against  A,  although  he  has 
really  caused  B's  breach.  Likewise,  where  two  dealers 
are  trying  to  sell  similar  goods  to  one  customer,  one 
dealer,  by  his  sale,  often  prevents  the  other  dealer  from 
selling,  there  is  no  legal  wrong.  These  are  simply  cases 
of  damnum  absque  injuria,  occurring  about  us  every 
day,  and  too  ob\4ous  to  warrant  further  discussion. 

Where  one  person  maliciously  interferes  with  the  con- 
tracts or  business  of  another,  a  different  situation  arises. 
Malicious  interference  of  this  kind  is  a  tort. 

The  amount  of  damages  depends  upon  the  provisions 
of  the  contract  and  the  amount  of  loss  proximately  re- 
sulting from  its  breach.  Certainty  will  probably  often 
play  a  large  part  in  cases  of  this  kind.  As  to  measure 
of  damages,  the  action  must,  to  a  great  degree,  resemble 
contract. 

34— Ware  Bros.  Co.  v.  Cortland,  35— See  p.  205. 

etc.,   (1908)    192  N.  Y.  439,  85  N. 
E.  666. 


CONTRACTS  IN  GENERAL  211 

But,  as  the  wrong  upon  which  the  action  is  based  is  a 
tort,  it  would  seem  that  exemplary  damages  might  be 
assessed  in  appropriate  cases. 

The  most  important  cases  in  this  field  have  been  those 
brought  for  malicious  interference  by  laborers  with  sales 
or  employment  by  an  ''unfair"  employer  of  labor.^^ 

Where  a  purchaser  of  a  railroad  ticket  has  agreed  with 
the  carrier  not  to  transfer  it,  and  a  ticket  broker  induces 
him  to  violate  his  contract  by  selling  it  to  him,  the 
broker's  act  is  actionable  as  an  interference  with  the 
contract.^  ^ 

CASE   ILLUSTRATIONS 

1.  A  customer  deposits  money  with  a  banker,  who  violates  his 
implied  contract  to  honor  the  customer's  checks.  The  customer 
does  not  happen  to  be  damaged.  Yet  he  may  maintain  his  action 
and  get  nominal  damages.^^ 

2.  Plaintiff  contracted  with  defendant  to  cultivate  defendant's 
farm  for  one  year  from  a  certain  date.  When  only  three  and 
one-half  months  of  the  year  had  elapsed,  defendant  ordered 
plaintiff  off  the  premises,  refused  to  allow  him  to  go  on  with 
the  contract,  and  let  the  land  to  a  stranger.  "The  damages, 
like  the  contract,  were  entire,  and  all  accrued  on  the  day  when 
the  contract  was  repudiated.  *  *  *  They  were  measured  by 
the  value  of  the  contract  of  which  the  plaintiff  was  deprived, 
and  did  not  consist  of  a  series  of  items,  although,  for  the  pur- 
pose of  estimating  the  value,  the  items  on  each  side  of  the  ac- 
count during  the  year,  as  well  after  as  before  the  breach,  were 
properly  admissible. ' '  ^^ 

3.  A  contracts  to  erect  a  building  for  B,  knowing  that  B  in- 
tends to  use  it  in  his  merchandise  business,  although  that  fact 
is  not  mentioned  in  the  contract.  Held,  that  B  may,  upon  breach 
by  A,  recover  for  loss  of  prospective  profits  by  reason  of  the 

36— Loewe  v.  Lawlor,  (1908)  208  38— Marzetti  v.  Williams,  (1830) 

U.   S.   274,  52   L.   ed.  488,  28   Sup.  1    B.    &   Ad.   415,    109   Eng.   JElepr. 

Ct.  301,  13  Ann.  Cas.  815.  842,  3  E.  K.  C.  746. 

37_Delaware,  L.  &  W.  E.  Co.  v.  39— Jewett  v.  Brooks,  (1883)  134 

Frank,    (1901)    110   Fed.   689.  Mass.  505. 


212  LAW  OF  DAMAGES 

breach,  if  such  profits  are  not  too  uncertain  and  contingent,  since 
such  a  loss  was  within  the  contemplation  of  the  parties.*" 

4.  In  consideration  of  certain  services  to  be  done  by  plain- 
tiff, defendant  agreed,  in  effect,  to  pay  $200  or  the  equivalent 
of  this  amount  in  loam  at  a  specified  price  per  cubic  yard.  Held, 
that  the  actual  value  of  the  loam  is  not  the  measure  of  plaintiff's 
compensation,  but  merely  the  $200.** 

40— Dondis    v.    Borden,     (Mass.  1050,  4  L.  R.  A.  (N.  S.)   569,  112 

1918)    119    N.    E.    184.     See    also  Am.  St.  Rep.  330,  5  Ann.  Cas.  825. 

Weston    V.    Boston    &    M.    E.    Co.,  41— Strout    v.    Joy,    (1911)    108 

(1906)    190    Mass.    298,   76   N.    E.  Me.  267,  80  Atl.  830. 


CHAPTER  XXVin 

Contracts  Relating  to  Real.  Estate 

109.  Failure  of  Vendor  to  Convey. — The  measure  of 
damages  for  the  failure  of  the  vendor  of  realty  to  fulfill 
his  contract  by  conveying  to  the  vendee,  varies  accord- 
ing to  the  circumstances  of  the  case. 

Where  the  vendor  has,  in  good  faith,  entered  into  a 
contract  to  convey  land  to  which  he  thinks  he  has  good 
title,  it  might  naturally  be  supposed  that  he  would,  upon 
finding  that  he  had  not  title  to  convey  and  failing  to 
convey  to  the  vendee,  be  held  liable  for  all  natural  and 
probable  consequences  of  his  breach,  despite  his  good 
faith.  In  other  branches  of  the  law  of  contract,  we  see 
that  good  faith  of  the  defendant  will  not  prevent  the 
operation  of  the  usual  rule  as  to  damages;  but  many  of 
the  cases,  especially  the  earlier  ones,  have  made  this  an 
exception  or  apparent  exception  to  the  general  rule  as 
to  damages  in  contract,  holding  that,  in  such  a  case,  if 
the  vendee  has  paid  the  purchase  price  or  a  part  thereof, 
he  has  a  right  only  to  the  return  of  his  money,  with  inter- 
est ;  ^  and,  naturally,  courts  holding  thus  come  to  the 
conclusion  that,  if  the  vendee  has  paid  nothing,  he  can 
get  only  nominal  damages  for  the  breach.^  Blackstone, 
J.,  in  deciding  the  leading  case  holding  to  this  view,  says : 
''These  contracts  are  merely  upon  condition,  frequently 
expressed,  but  always  implied,  that  the  vendor  has  a  good 
title.  If  he  has  not,  the  return  of  the  deposit,  with  in- 
terest and  costs,  is  all  that  can  be  expected. "  *    If  this 

1— Flureau   v.   Thornhill,    (1776)       N.  Y.  167;  Margraf  v.  Muir,  (1874) 
2  W.  Bl.   1078,  96  Eng.  Kepr.  635.       57  N.  Y.  155. 

2— Mack   V.   Patchin,    (1870)    42  3— Flureau  v.  Thornhill,  supra. 

213 


214  LAW  OP  DAMAGES 

statement,  which  represents  the  English  view  of  the  ra- 
tionale of  the  rule,  accords  with  business  usage,  these 
cases  constitute  rather  an  apparent  than  a  real  excep- 
tion to  the  general  principle  that  the  breaker  of  a  contract 
is  liable  for  all  elements  of  damage  that  were  within  the 
contemplation  of  the  parties  as  natural  and  probable  con- 
sequences of  a  breach;  for  this  statement  indicates  that 
the  parties  do  not  intend  that  a  party  who  contracts  bona 
fide  to  convey  certain  realty,  shall  be  held  liable  for  his 
inability  to  do  so.  Explained  otherwise,  the  rule  cannot 
be  other  than  anomalous.  But  Blackstone's  above  at- 
tempt at  justifying  the  rule  is  not  always  accepted  at  its 
face  value.  Mason,  J.,  in  Pumpelly  v.  Phelps,*  says: 
**  There  has  never  seemed  to  me  to  have  been  any  very 
good  foundation  for  the  rule,  which  excused  a  party  from 
the  performance  of  his  contract,  to  sell  and  convey  lands, 
because  he  had  not  the  title  which  he  had  agreed  to  convey. 
There  seems  to  have  been  considerable  diversity  of 
opinion  in  the  courts  as  to  the  grounds  upon  which  the 
rule  itself  is  based  *  *  *  while  in  this  country  the 
rule  is  based  upon  the  analogy  between  this  class  of  cases 
and  actions  for  breach  of  covenant  of  warranty  of  title. 
*  *  *  The  reasons  assigned  for  this  rule  in  actions 
for  a  breach  of  covenant  of  warranty  of  title  can  scarcely 
apply  to  these  preliminary  contracts  to  sell  and  convey 
title  at  a  future  time.  In  the  latter  case  the  vendee  knows 
he  has  not  got  the  title,  and  that  perhaps  he  may  never 
get  it ;  and  if  he  will  go  on  and  make  expenditures  under. 

4 — ^Pumpelly    v.    Phelps,    (1869)  cases  free  from  bad  faith  is  that 

40   N.   Y.    59,    100   Am.   Dee.    463,  the    measure    of    damages    is    thus 

citing:    Baldwin  v.  Munn,  2  Wend.  made  to  conform  to  the  rule  where 

(N,  Y.)  399,  20  Am.  Dee.  627;  Pe-  the  party  assumes  to  convey  land 

ters  V.  MeKeon,  (1847)  4  Denio  (N.  which  he  does  not  own,  and  an  ac- 

Y.)    546.  tion  is  brought  against  him  on  the 

See  similar  rule  as  to  breach  of  covenants  orf  title  contained  in  his 

warranty  of  title,  infra,  p.  216.  deed." — Cooley,  J.,  in  Hammond  v. 

"One  very  strong  reason  for  lim-  Hannin,    (1870)    21    Mich.    374,    4 

iting  the   recovery  to   the   consid-  Am.  Rep.  490. 
eration    money    and     interest     in 


REALTY  CONTRACTS  215 

such  circumstances  it  is  his  own  fault ;  and  besides,  these 
preliminary  contracts  to  convey  generally  have  but  a 
short  time  to  run,  and  there  is  seldom  any  such  oppor- 
tunity for  the  growth  of  towns,  or  a  large  increase  in  the 
value  of  the  property  as  there  is  in  these  covenants  in 
deeds,  which  run  with  the  land  through  all  time." 

"The  true  rule  seems  to  be  that  whatever  the  reason 
for  the  failure  to  convey,  the  measure  of  damages  is  the 
market  value  at  the  time  of  the  breach,  with  interest,  less 
the  amount  of  the  purchase  price  unpaid. ' '  ^  This  is  true 
according  to  the  weight  of  modern  authority. 

The  wailful  refusal  of  the  vendor  to  convey  a  title  which 
he  actually  holds  and  which  he  has  contracted  to  convey 
to  the  vendee,  or  the  vendor's  failure  to  convey  a  title 
which,  at  the  time  of  contracting,  he  knew  he  had  no  right 
or  power  to  convey,  according  to  some  cases,  stands  on  a 
very  different  footing  from  that  of  the  failure  of  the  bona 
fide  contractor  to  convey,  who  finds  himself  unable  to  do 
so.  Whether  such  mala  fide  contractor  finds  himself  in  a 
jurisdiction  administering  the  first  of  the  above  stated 
rules  as  to  the  bona  fide  contractor  or  in  one  administer- 
ing the  second,  he  is  in  the  same  position  as  that  of  the 
breaker  of  any  other  kind  of  contract,  and  he  is  liable 
for  all  the  natural  and  probable  results  of  his  breach. 
He  must  compensate  the  vendee  for  his  loss  of  bargain, 
which  means  that  the  measure  of  damages  for  his  breach 
before  any  consideration  has  passed  is  the  difference  be- 
tween the  value  of  the  land  at  the  time  set  for  convey- 
ance, and  the  contract  price,  as  in  the  case  of  breach  of 
a  contract  to  sell  personalty.  If,  in  such  a  case,  the 
vendor's  breach  occurs  after  the  payment  of  the  purchase 
price,  the  measure  of  damages  is  the  value  of  the  realty 
at  the  time  of  the  breach.^ 

5—29  Am.  &  Eng.  Encye.  of  Law  U.  S.  (6  Wheat.)  109,  5  L.  ed. 
725,  and  cases  there  cited.  218. 

6 — Hopkins    v.    Lee,    (1821)    19  The  measure  of  damages  is  the 


216  LAW  OF  DA^IAGES 

110.  Breach  of  Grantor's  Covenants  in  Conveyance. — 
Upon  breach  of  the  grantor's  covenant  of  warranty  of 
title,  it  might  be  supposed  that  the  general  rule  as  to 
damages  in  contract  would  apply,  and  that  the  vendee 
would  be  entitled  to  be  compensated  for  loss  of  his  bar- 
gain; but  the  vendee's  measure  of  damages  for  breach 
of  warranty  affecting  the  whole  tract  is  usually  the  pur- 
chase price  paid,  with  costs  of  eviction  suit  and  with  in- 
terest on  the  purchase  price  from  the  date  of  the  pur- 
chase ;  and,  in  the  case  of  a  failure  of  the  title  as  to  only 
part  of  the  tract  sold,  the  return  of  purchase  money  and 
interest  thereon  is  proportioned  to  the  whole  purchase 
price  as  the  value  of  the  part  to  which  title  has  failed  is 
proportioned  to  the  whole  tract,  value  and  not  acreage 
being  the  basis  of  the  calculation.'^ 

Where  defendant  broke  covenants  of  seizin  and  right  to 
convey,  contained  in  a  deed  from  defendant  to  plaintiff's 
testatrix,  and  the  consideration  for  the  deed  was  the  con- 
veyance to  a  third  party  of  the  right  to  redeem  certain 
real  estate  belonging  to  testatrix,  and  the  conveyance  to 
a  third  party  of  certain  personal  property,  the  measure 
of  damages  is  the  value  of  the  conveyances  made  in  con- 
sideration.^ The  fact  that  the  consideration  is  paid  or 
delivered  to  another  person  than  the  grantor,  or  that  it 

value  of  the  land  at  the  time  when  Mass.  286.     "The  general  rule  is 

it   was   to   be    conveyed,   and    not  well   settled  that   the   measure   of 

its   value  at  the   time   of  making  damages   for   breach   of   this   cov- 

the  contract. — Plummer  v.  Eigdon,  enant  is  the  consideration  paid,  or 

(1875)    78    HI.   222,   20    Am.   Rep.  price  agreed  upon  for  the  convey- 

261.  ance.      The     actual     consideration 

7 — See  Tiffany  on  Real  Property,  may  be  proved  for  this  purpose  by 

§400,  and  cases  there  cited.   "The  parol  evidence,  even  in  comtradic- 

measure  of  damages  for  a  breach  tion  to  the  recital  thereof  in  the 

of    a    covenant    for    quiet    enjoy-  deed   itself.     It   does  not   modify 

ment   or   of   warranty  is,   by   the  the  rule,   if  the   actual  considera- 

weight  of  authority,  the  same  as  tion  was  paid  in  other  commodities 

that  for  breach  of  the  covenants  than  money,  or  even  in  other  real 

of  seisin  or  of  right  to  convey."—  estate.     It  only  requires  that  the 

M.  value    of    such    other    property    be 

8 — Hodges  V.  Thayer,  (1872)  110  ascertained." 


REALTY  CONTRACTS  217 

is,  before  delivery,  the  property  of  another  person  than 
the  grantee,  makes  no  difference  in  the  rule  as  to  measure 
of  damages,  provided  only  that  such  consideration  and 
such  manner  of  delivery  are  those  agreed  upon.^ 

Where  the  value  of  the  consideration  is  incapable  of 
satisfactory  proof,  the  value  of  the  land  attempted  to  be 
conveyed,  with  interest  from  the  date  of  the  deed,  is  the 
only  practicable  measure  of  damages.^^ 

Defendant  sold  plaintiff  certain  lands,  as  to  some  of 
which  title  failed.  Should  defendant  be  permitted  to 
show  that  the  lands  of  which  there  was  a  failure  of  title 
were  of  quality  inferior  to  that  of  the  other  lands  con- 
veyed by  the  same  deed!  Yes.  ''This  appears  to  be 
reasonable ;  and  the  rule  would  operate  with  equal  justice 
as  to  all  the  parties  to  a  conveyance.  Suppose  a  valuable 
stream  of  water  with  expensive  improvements  upon  it, 
with  10  acres  of  adjoining  barren  land,  was  sold  for 
$10,000;  and  it  should  afterwards  appear  that  the  title 
to  the  stream  with  the  improvements  on  it  failed,  but 
remained  good  as  to  the  residue  of  the  land,  would  it  not 
be  unjust  that  the  grantee  should  be  limited  in  damages 
under  his  covenants,  to  an  apportionment  according  to 
the  number  of  acres  lost,  when  the  sole  inducement  to  the 
purchase  was  defeated ;  and  the  whole  value  of  the  pur- 
chase had  failed  ?    So,  on  the  other  hand,  if  only  the  title 

9 — Hodges  V.  Thayer,  supra.  and  was  made  directly  from  the 
"Their  contract  creates  the  privi-  grantor  to  the  grantee  as  a  matter 
ty  between  them  in  relation  to  the  of  convenience,  and  not  in  exeeu- 
consideration,  and  constitutes  it  as  tion  of  an  agreement  between  them, 
the  price  of  the  agreed  conveyance.  Each  was  a  stranger  to  the  con- 
It  thereby  becomes  the  measure  of  sideration  by  which  the  other  was 
the  grantee's  loss.  In  the  case  of  affected.  There  being  no  price 
Byrnes  v.  Kich,  (1855)  5  Gray  agreed  upon  as  between  them,  the 
(Mass.)  518,  there  was  no  consider-  value  of  the  land  attempted  to  be 
ation  or  price  agreed  upon  between  conveyed  was  resorted  to  as  the 
the  grantor  and  grantee.  So  far  proper  measure  in  the  absence  of 
as  that  was  concerned,  each  had  a  any  other." 

separate   agreement   with    a    third  10 — Smith  v.  Strcmg,    (1833)    14 

party.      The    deed   passed    as    the  Pick.   (Mass.)   128. 
result  of  two  different  agreements, 


218  LAW  OF  DAMAGES 

to  the  nine  barren  acres  failed,  the  vendor  would  feel  the 
weight  of  extreme  injustice  if  he  was  obliged  to  refund 
nine-tenths  of  the  consideration  money.  This  is  not  the 
rule  of  assessment.  The  law  will  apportion  the  damages 
to  the  measure  of  value  between  the  land  lost  and  the  land 
preserved. ' '  ^* 

110a.  Brea<;h  by  Vendee. — ^Where  a  vendee  refuses  to 
take  title  to  the  land  and  pay  the  purchase  price,  some 
cases  have  gone  so  far  as  to  permit  the  vendor  to  recover 
the  whole  purchase  price,  while  retaining  the  land.  But 
the  usual  and  logical  rule  is  that  the  question  is  purely 
one  of  damages  and  that  the  vendor  can  recover  only  an 
amount  that  will  compensate  him  for  his  loss,  which  is  the 
excess  of  the  contract  price  over  the  market  value.^^  If 
the  contract  price  be  not  in  excess  of  the  market  value, 
the  vendor 's  damages  will  be  nominal. 

111.  Breach  of  Lessor's  Contract  by  Withholding  Pos- 
session from  Lessee  or  Wrongfully  Evicting  Him. — 
Where  a  lessor  breaks  the  agreement  contained  in  his 
lease  by  preventing  the  lessee  from  taking  possession 
or  by  wrongfully  evicting  him  from  the  land  during  the 
term  of  the  lease,  the  lessee  can  recover  for  all  loss  nat- 
urally and  proximately  resulting  from  the  lessor's  wrong. 
The  direct  damage  is  the  difference  between  the  rental 
agreed  upon  and  the  actual  rental  value  of  the  premises 
for  the  time  during  which  the  lessee  is  wrongfully  kept 
out  of  possession.^^  Consequential  elements  of  damage 
will  vary  greatly,  according  to  the  circumstances  of  the 
case.  Profits  reasonably  certain  in  amount  and  lost  as 
a  natural  probable  result  of  such  breach  may  be  recov- 
ered.^^   Where  the  lessor  fails  to  deliver  to  the  lessee 

11 — Morris   v.    Phelps,    (1809)    5  14 — Raynor  v.  Val.  Blatz  Brew- 

Johns.  (N.  Y.)  49,  4  Am.  Dec.  323.       ing   Co.,    (1898)    100   Wis.   414,  76 

12— Laird  v.   Pim,    (1841)    7  M.      N.  W.  343. 
&  W.   474,   151   Eng.   Repr.   852. 

13— Trull    V.    Granger,    (1853)    8 
N.  Y.  115. 


REALTY  CONTRACTS  219 

the  farm  leased,  the  latter  has  a  right  to  recover  the 
amount  of  such  profits  as  can  be  proven  with  reasonable 
certainty.  Loss  of  the  usual  profits  made  in  farming 
such  a  farm  must  have  been  in  the  contemplation  of  the 
parties  as  a  probable  result  of  such  a  breach.^^  But 
profits  which  the  lessee  expected  to  make  by  a  use  of  the 
premises  for  an  illegal  purpose  cannot  be  made  a  basis 
of  recovery. ^^ 

112.  Failure  of  Lessor  to  Make  Repairs  Covenanted 
for. — The  measure  of  damages  for  breach  of  a  covenant 
of  the  landlord  to  repair  varies  according  to  the  facts 
in  the  case.  If  the  breach  makes  it  impossible  for  the 
tenant  to  make  use  of  the  premises,  his  measure  of  dam- 
ages is  the  rental  value  of  the  property  for  the  time  dur- 
ing which  the  breach  deprives  him  of  the  use  of  the 
premises.^"^  If  the  tenant,  in  order  to  avoid  the  injurious 
consequences  of  the  breach,  makes  the  repairs  himself, 
he  can  recover  the  necessary  expenditure  made  for  that 
purpose.*^ 

113.  Breach  of  Tenant's  Covenant  to  Make  Repairs. — 

Where,  during  the  continuance  of  his  term,  the  tenant 
breaks  his  covenant  to  keep  the  premises  in  repair,  the 
landlord  may  recover  the  loss  he  has  incurred  by  reason 
of  the  diminution  in  the  market  value  of  his  reversion. 
The  reasons  for  this  rule  are  that  the  landlord  cannot 
avoid  the  consequences  of  the  breach  by  making  the  re- 
pairs himself,  as  he  has  no  legal  right  to  enter  upon  the 
land;  and  further,  that  the  loss  in  value  of  the  rever- 

15_Stewart   v.   Murphy,    (1915)  N.    Y.    Supp.    689,    128    App.    Div. 

95   Kan.   421,  148   Pac.   609,   Ann.  184. 

Cas.   1917  C   612.  17— Winne  v.  Kelley,  (1872)    34 

See   also  O'Neal  v.   Bainbridge,  la.  339. 

(1915)  94  Kan.  518,  146  Pac.  1165.  18— Fillebrown   v.   Hoar,    (1878) 

16— Eagan  v.  Browne,  (1908)  112  124  Mass.  580. 


220  LAW  OF  DAMAGES 

sion  is  immediate,  the  amount  which  it  will  bring  in  the 
market  being  diminished  at  once.^^ 

Where,  however,  the  breach  consists  simply  of  the 
tenant's  leaving  the  premises  out  of  repair  at  the  end 
of  the  term,  the  landlord,  having  regained  possession, 
is  in  a  position  to  make  the  repairs  himself;  and  so  his 
recovery  is  limited  to  the  cost  of  making  the  repairs.^" 

CASE   ILLUSTRATIONS 

1.  A  conveys  320  acres  of  land  to  B,  giving  a  covenant  of 
warranty  of  title.  40  acres  of  the  tract  are  subject  to  an  in- 
cumbrance. "The  damages  for  an  entire  failure  of  title  to 
forty  acres,  of  a  tract  of  three  hundred  and  twenty  acres 
*  *  *  would  be  an  amount  which  would  bear  the  same  arith- 
metical proportion  towards  the  purchase  money,  as  the  real  value 
of  the  forty  acres  would  to  the  real  value  of  the  entire  tract 
of  three  hundred  and  twenty  acres.  *  *  *  The  damage  here 
suffered,  and  for  which  a  recovery  should  be  allowed,  is  the 
diminished  value  of  the  whole  tract  of  land,  the  title  of  which 
the  defendant  warranted,  by  reason  of  the  incumbrance;  or,  in 
other  words,  the  difference  between  the  value  of  the  whole  tract, 
if  the  title  were  good,  and  its  value  as  depreciated  by  the  in- 
cumbrance." ^i 

2.  Defendants  sold  plaintiff  land,  covenanting  against  in- 
cumbrances. There  were  incumbrances;  but  plaintiff's  posses- 
sion was  not  disturbed,  and  he  did  not  pay  the  mortgage  or  any 
lien  on  the  land.  Held,  that  plaintiff  is  entitled  to  only  nominal 
damages.  22 

3.  A  leases  to  B  a  room  for  art  studio  purposes,  and  to  C  a 
portion  of  the  same  building  for  use  in  an  automobile  busi- 
ness. C,  acting  within  the  terms  of  his  lease,  caused  so  much 
vibration  that  B  had  to  move  her  art  business  from  the  leased 
premises  before  the  expiration  of  her  lease.  Held,  that  A's 
lease  to  C  for  such  purposes  amounted  to  an  eviction  of  B,  and 

19— Watriss    v.    First    National  22— McGuckin  v.  Milbank,  (1897) 

Bank,  (1881)  130  Mass.  343.  152  N.   Y.   297,  46  N.   E.  490. 

20— Id. 

21— Clark  v.  Zeigler,   (1885)   79 
Ala.   346. 


REALTY  CONTRACTS  221 

that  B  could  recover  of  A  for  the  expense  of  moving  and  in- 
stalling herself  in  a  new  studio,  for  loss  of  time,  and  for  the 
destruction  of  a  glass  picture  shaken  down  and  broken  by  the 
vibration  caused  by  the  presence  of  automobiles  in  the  build- 
ing.23 

23— Wade  v.  Herndl,  (1906)  127 
Wis.  544,  107  N.  W.  4,  5  L.  R. 
A.   (N.  S.)    855,  7  Ann.  Cas.  591. 


CHAPTER   XXIX 

Sales  and  Contracts  to  Sell  Personalty 

114.  Distinction  Between  Actual  Sales  and  Contracts 
to  Sell. — A  sale  is  a  transfer  of  the  title  to  goods  for  a 
price.  A  contract  to  sell  is  an  agreement  to  transfer 
title  to  goods  at  some  future  time  or  upon  a  certain 
event  or  contingency.  It  is  evident  that  the  measure  of 
damages  is  not  the  same  in  an  action  growing  out  of  a 
sale  as  it  would  be  in  one  arising  out  of  a  contract  to 
sell.  In  the  former  case,  the  title  has  passed,  so  that 
the  vendee  has  the  goods  or  property  in  them;  while, 
in  the  latter  case,  the  vendee  has  not  yet  taken  title  to 
the  goods.  This  distinction  is  important  in  its  effect 
upon  the  possible  position  of  the  seller.  Where  an  ac- 
tual sale  has  taken  place,  so  that  title  has  passed  to  the 
buyer,  the  seller  can  maintain  his  action  for  the  price; 
but,  in  the  case  of  a  mere  contract  to  sell,  no  action  for 
the  price  accrues  before  the  happening  of  a  certain  con- 
dition, which  is  usually  delivery  of  the  goods  or  some  act 
indicating  change  of  ownership.  Of  course  the  vendor 
and  vendee  may  make  their  respective  promises  to  de- 
liver goods  and  pay  money  independent  undertakings, 
or  they  may  agree  for  ** payment  in  advance,"  revers- 
ing the  usual  order  of  delivery  first  and  then  payment. 
We  thus  find  many  instances  in  which  a  contract  is  so 
framed  as  to  give  the  vendor  a  right  to  be  paid  the  pur- 
chase price  before  passage  of  title  or  independently  of 
it.  As  we  shall  see,  the  measure  of  damages  for  non- 
acceptance  of  goods  under  an  executory  contract  is  not 
the  same  as  the  purchase  price  which  the  vendor  can  re- 
cover if  title  has  passed. 

222     . 


SALES  OP  GOODS  223 

115.  Failure  of  Vendor  to  Supply  Goods.— Ordinarily, 
the  measure  of  damages  for  a  failure  of  a  vendor  to  sup- 
ply goods  that  he  has  contracted  to  supply,  is  the  excess 
which  the  vendee  is  obliged  to  pay  over  and  above  the 
contract  price  in  order  to  get  the  goods  at  the  time  and 
place  of  delivery  stipulated  for  in  the  contract.  Because 
the  amount  the  vendee  has  to  pay  is  usually  the  market 
price,  he  may  usually  recover  the  excess  of  the  market 
price  over  the  contract  price  at  the  stipulated  time  and 
place  of  delivery.^  This  does  not  mean,  however,  that 
the  vendee  is  obliged,  in  every  instance,  to  buy  at  once 
upon  breach  in  order  to  have  the  right  to  be  reimbursed 
for  his  actual  outlay  in  excess  of  the  contract  price,  but 
only  that  he  must  buy  within  a  reasonable  time  after  the 
breach .2  If  the  goods  have  no  market  value,  their  rea- 
sonable value  is  considered  instead  of  their  market  value, 
or,  if  the  goods  were  to  be  made  to  fill  the  contract,  the 
reasonable  cost  of  having  them  made  by  another  manu- 
facturer than  the  vendor,  is  taken  as  their  value.^     If 

1— Gainsford    v.    Carroll,    (1824)  (2d  ed.)    p.  218;   Kountz  v.  Kirk- 

2  Barn.  &   C.  624,   107  Eng.  Eepr.  patrick,  (1872)   72  Pa.  37<3,  13  Am. 

516,   9   E.   C.   L.   273;    Shepherd   v.  Rep.   687. 

Hampton,  (1818)  3  Wheat.  (U.  S.)  2— "The  buyer  need  not  go  into 
200;  4  L.  ed.  369;  Moffitt-West  the  market  the  next  day,  but  is 
Drug  Co.  V.  Byrd,  (1899)  92  Fed.  entitled  to  the  difference  in  price 
290,  34  C.  C.  A.  351;  Smith  v.  Dun-  at  the  time  when  he  might  reasom- 
lap,  (1850)  12  111.  184;  Shaw  v.  ably  procure  the  article." — Josling 
Nudd,  (1829)  8  Pick.  (Mass.)  9.  v.  Irvine,  (1861)  6  Hurl.  &  N.  512, 
But,  as  the  law  intends  only  com-  158  Eng.  Eepr.  210. 
pensation  for  actual  loss,  if  the  3 — "If  there  was  no  market  val- 
vendee  has  the  good  fortune  to  ue  for  such  iron,  then  the  next  best 
buy  for  less  than  the  market  price,  evidence  would  be  its  value,  ascer- 
he  can  recover  only  the  excess  of  tained  by  those  whose  experience 
hia  actual  payment  over  the  con-  in  dealing  with  irorn  of  this  char- 
tract  price.  Theiss  v.  Weiss,  acter  would  enable  them  to  state 
(1895)  166  Pa.  9,  31  Atl.  63,  45  its  value.  "—Warren  v.  Mayer 
Am.  St.  Rep.  638.  Mfg.     Co.,    (1901)     161    Mo.    112, 

The  only  market  price  considered  61  S.  W.  644. 

is  a  fair  market  price.     An  unnat-  "When   the  property  contracted 

urally  inflated  market  price  is  no  for    is    not    readily    obtainable    on 

criterion.     R.  M.  Benj.  Prin.  Sales  the  market  at  the  place  of  deliv- 


224  LAW  OF  DAMAGES 

the  market  value  is  less  than  the  contract  price,  the  ven- 
dee can  get  only  nominal  damages  for  the  non-delivery 
by  the  vendor,  as  he  suffers  no  actual  damage  whatever, 
in  the  absence  of  special  damage.^ 

In  some  cases,  however,  it  happens  that  the  parties 
contemplate  a  greater  loss  in  case  of  breach  than  would 
ordinarily  accrue.  Where  the  goods  bought  are  for  a 
particular  purpose  and  the  seller  knows  of  this  purpose, 
he  may  be  liable  in  a  greater  sum  than  the  mere  differ- 
ence between  the  contract  price  and  the  market  price. 
The  question  here,  as  in  all  contract  cases,  is:  **What 
did  the  parties  intend  and  contemplate?"  If  they  con- 
templated no  more  than  the  parties  usually  contemplate 
in  such  cases,  they  naturally  expect  that  the  default  of 
the  vendor  will  not  cause  the  vendee  any  more  loss  than 
the  difference  between  the  agreed  price  and  the  market 
price  at  the  time  and  place  of  delivery ;  but,  if  the  vendor 
contracts  knowing  of  a  subcontract  under  which  the  ven- 
dee will  suffer  a  certain  loss  in  the  event  of  a  breach  by 
him,  the  original  vendor,  or  if  he  contracts  knowing  that 
the  vendee  is  intending  to  use  the  goods  for  a  certain 
purpose,  in  which  the  vendee  may  fail  in  the  event  of 
the  vendor's  breach,  the  vendor  is  liable  for  the  natural, 
probable,  and  proximate  results  of  his  breach,  which  may 
far  exceed  the  amount  arrived  at  according  to  the  usual 
measure  of  damages.^    Even  in  such  a  case,  however,  the 

ery  under  the  contract,  it  has  been  market    value    of    the    article    at 

held  that  the  purchaser  may  recov-  the  time  and  place  of  delivery  fixed 

er     the     difference     between     the  by  the  contract.     This  is  nort  the 

agreed  price  and  the  actual  cost  of  invariable  rule  in  all  cases.     The 

procuring  similar  property  by  due  general  rule  is,  that  the  party  in- 

diligence. " — McFadden     v.     Shan-  jured  by  a  breach  of  a  contract, 

ley,    (1914)    16  Ariz,  91,   141   Pac.  is  entitled  to  recover  all  his  dam- 

732.  ages,  including  gains  prevented  as 

4 — ^Bush    V.    Canfield,    (1S18)     2  well   as  losses  sustained,  provided 

Conn.  485.  they  are  certain,  and  such  as  might 

5 — "The    general    rule    of    dam-  naturally  be  expected  to  follow  the 

ages,   ordinarily,  is   the   difference  breach.     In,  commodities  commonly 

between  the  contract  price  and  the  purchasable    in    the    market,   it    is 


SALES  OF  GOODS 


225 


vendee  cannot  sit  idly  by  and  make  no  attempt  to  avoid 
consequences  by  going  into  the  market,  if  there  be  one, 
and  purchasing  such  articles  as  those  contracted  for.*^ 
So  sometimes  the  loss  of  profits  on  a  subcontract  or  in- 
jury to  business  is  a  probable,  proximate  and  certain 
result  of  a  breach  by  the  vendor,  and  is  therefore  a 
recoverable  element  of  damaged    There  is,  however,  of- 


safe  to  say  that  the  purchaser  is 
made  whole,  when  he  is  allowed  to 
recover  the  difference  between  the 
contract  price  and  the  value  of  the 
article  in  the  market  at  the  time 
and  place  of  delivery;  because  he 
can  supply  himself  with  this  ar- 
ticle by  going  into  the  market  and 
making  his  purchase  at  such  price, 
and  these  are  all  the  damages  he  is 
ordinarily  entitled  to  recover,  for 
nothing  beyond  this  is  within  the 
contemplation  of  the  parties  when 
they  entered  into  the  contract. 

"This  rule,  however,  is  changed 
when  the  vendor  knows  that  the 
purchaser  has  an  existing  contract 
for  a  re-sale  at  an  advanced  price, 
and  that  the  purchase  is  made  to 
fulfill  such  contract,  and  the  ven- 
dor agrees  to  supply  the  article  to 
enable  him  to  fulfill  the  same,  be- 
cause those  profits  which  would 
accrue  to  the  purchaser  upon  ful- 
filling the  contract  of  re-sale,  may 
■justly  be  said  to  have  entered  into 
the  contemplation  of  the  parties  in 
making  the  contract.  (Griffin  v. 
Colver,  16  N.  Y.  E.  493.)  This 
rule  is  based  upon  reason  and  good 
sense,  and  is  in  strict  accordance 
with  the  plainest  principles  of 
justice.  It  affirms  nothing  more 
than  that  where  a  party  sustains 
a  loss  by  reason  of  a  breach  of  a 
contract,  he  shall,  so  far  as  money 
can  do  it,  be  placed  in  the  same 
situation  with  respect  to  damages, 
Bauer  Dam. — 15 


as  if  the  contract  had  been  per- 
formed."— Messmore  v.  New  York 
Shot  &  Lead  Co.,  (1869)  40  N.  Y. 
422. 

6 — It  has  even  been  held  that,  in 
order  to  avoid  consequences,  he 
must  buy  of  the  offending  party. — 
Lawrence  v.  Porter,  (1894)  63  Fed. 
62,  11  C.  C.  A.  27,  26  L.  B.  A. 
167. 

It  is  held  that,  where  the  buyer 
has  already  paid  the  purchase  price 
to  the  seller,  the  buyer  cannot  be 
required,  in  order  to  avoid  dam- 
age, to  go  into  the  market  and 
buy  again.  In  a  case  in  carriers, 
precisely  the  same  principle  is  well 
stated  as  follows:  "It  would  be 
very  unreasonable  to  require  one, 
who  has  bought  and  paid  for  an 
article,  to  have  the  money  in  his 
pocket  with  which  to  buy  a  second, 
in  case  of  the  nondelivery  of  the 
first.  This  demand  comes  with  an 
ill  grace  from  a  party  by  whose 
fault  there  had  been  a  failure  of 
delivery."  Illinois  Central  K.  Co. 
V.  Cobb,  Christy  &  Co.,  (1872)  6* 
111.  128. 

7 — Messmore  v.  New  York  Shot 
&  Lead  Co.,  (1869)  40  N.  Y.  422. 

The  seller  in  default  would  tfot, 
however,  be  liable  for  the  loss  of 
such  profits  if  the  fact  of  the 
existence  of  the  sub-contract  had 
not  been  communicated  to  him. 
Grebert-Borgnis  v.  Nugent,  (1885) 
15   Q.   B.   D.  85.     The  latter  case 


226  LAW  OF  DAMAGES 

ten  such  lack  of  certainty  of  proof  as  to  profits  as  to  bar 
their  recovery.®  It  must  be  remembered  that  conjectural 
and  speculative  profits  are  no  more  a  basis  of  compen- 
sation here  than  in  any  other  field.  Profits  such  as  would 
have  been  realized  by  the  vendee  on  independent  and 
collateral  undertakings,  even  though  such  undertakings 
were  entered  into  in  consequence  of  and  reliance  upon 
the  principal  contract,  are  too  remote  and  uncertain  to 
constitute  a  recoverable  element  of  damage.^  But  a  sub- 
contract is  not  independent  of  the  principal  contract,  if 
the  principal  contract  is  entered  into  with  the  subcon- 
tract in  the  contemplation  of  the  parties.^  ^ 

Where  the  article  contracted  for  has  no  market  value 
and  the  vendor  knows  that  it  is  to  be  used  in  filling  a 
subcontract  and  does  not  know  what  the  subcontract  price 
is,  he  cannot  escape  with  an  assessment  of  nominal  dam- 
ages, but  is  held  to  be  liable  for  the  loss  of  profits  aris- 
ing as  a  certain,  proximate,  and  probable  result  of  his 
breach  of  contract.^  ^    But  if  the  subcontract  price  is  un- 

contains  a  good  discussion  of  tho  rectly  arise   from  its  breach,  and 

subject.  which     must     have    been    contem- 

8 — Fox    V.    Harding,     (1851)     7  plated    by    the    parties    when    the 

Cush.   (Mass.)   516.  contract  was  made.    Profits  of  this 

See  also  Griffin  v.  Colver,  (1858)  description     may     be     recovered, 

16  N.  Y.  489,  69  Am.  Dec.  718.  althoTigh  as  a  general  rule  the  prof- 

9 — Fox  V.  Harding,  supra.  its  of  a  future  transaction  are  re- 

10 — "This   action  is   to  recover  garded  as  an  element  too  remote 

profits  which   would  have  accrued  to   be   taken   into   account   in   the 

to  the  plaintiff  by  the  delivery  of  estimate  of  damages."     Somers  v. 

$5,000   worth    of   lumber   at   retail  Wright,  (1874)   115  Mass.  292,  cit- 

prices    instead    of    cash,    with    the  ing:      Fox    v.    Harding,    (1851)    7 

interest  paid  on  that  sum.  Cush.    (Mass.)    516;    Masterton    v. 

"It    was     contended    that     the  Mayor  of  Brooklyn,  (1845)   7  Hill 

plaintiff  could  not  under  this  agree-  (N.  Y.)  61,  42  Am.  Dec.  38. 
ment   and   declaratiom  recover  for  11 — ^AUis  v.  McLean,   (1882)   48 

loss  of  profits.     But  the  agreement,  Mich.  428,  12  N.  W.  640;  Booth  v. 

as    applied    to   the    subject-matter,  Spuyten   Duyvil   Rolling  Mill   Co., 

and   the    relations    of   the   parties  (1875)  60  N.  Y.  487.  See  also  Equi- 

under    another    contract    expressly  table   Gas-Light    Co.   v.   Baltimore 

referred  to,  clearly  shows  that  tho  Coal-Tar,  etc.,  Co.,  (1885)    65  Md. 

loss  of  profits  claimed  is  the  loss  73,  3  Atl.  108. 
which    mast    necessarily    and    di- 


SALES  OF  GOODS  227 

usually  high,  so  as  to  afford  exorbitant  and  unusual 
profits,  the  vendor,  unless  he,  at  the  time  of  making  the 
contract,  knew  of  such  profits,  cannot  be  held  liable  for 
the  loss  of  them.  The  loss  of  enormous  and  unusual 
profits  cannot  be  said  to  be  a  natural  and  probable  con- 
sequence of  a  breach  of  contract  where  not  specially 

within  the  contemplation  of  the  parties  at  the  time  of 
contracting.^^ 

Where  the  vendor  supplies  goods  of  a  quality  inferior 
to  those  specified  in  the  contract,  the  vendee  can  recover 
damages  for  all  loss  resulting  from  the  breach,  subject 
to  the  usual  rules  as  to  certainty  and  causation.  The 
vendee  may,  of  course,  refuse  to  accept  goods  falling 
substantially  below  the  requirements  of  the  contract ;  but, 
if  he  accepts  them,  he  has  a  right  to  damages  for  losses 
suffered  as  a  proximate  and  probable  result  of  the  breach. 
His  damages  may  be  simply  the  difference  between  the 
value  of  the  goods  as  they  would  have  been  if  they  had 
been  as  contracted  for  and  their  value  as  they  actually 
were;^^  or,  if  the  vendor  has  contracted,  knowing  that 
any  breach  as  to  quality  would  bring  certain  other  and 
special  losses  upon  the  vendee,  he  is  held  liable  for  such 
losses.^* 

The  vendor  is  held  liable  for  all  proximate  and  prob- 
able consequences  of  a  delay  in  delivery.  Here  again 
the  measure  of  damages  to  be  assessed  against  the  ven- 
dor in  default  is  determined  largely  by  the  intention 
of  the  parties.^  ^ 

12— -Guetzkow  Bros.   Co.   v.   An-  en  Mills,   (1904)    117  Ky.  450,  25 

drews,   (1896)  92  Wis.  214,  66  N.  Ky.  Law  1445,  78  S.  W.   192. 

W.  119,  52  L.  R,  A.  209,  53  Am.  15 — The     measure     of     damages 

St.   Rep.  909.  may,  in  one  case,  be  no  more  than 

13 — The    measure     of    damages,  the  difference  between  the  market 

where  it  is  practicable  to  remedy  price  at  the  time  set  for  delivery 

the  defect,  is  the  cost  of  remedy-  and  the  lower  market  price  at  the 

ing  it.    Benjamin  v.  Hillard,  (1859)  actual  time   of  delivery;   or  there 

23  How.  (U.  S.)  149,  16  L.  ed.  518.  may  be   special   elements  of   dam- 

14 — Wallace  v.  Knoxville  Wool-  age  for  delay.       See  35  Cyc.  645, 


228  LAW  OF  DAMAGES 

116.  Breach  of  Warnoity. — ^For  breach  of  warranty  by 
the  vendor,  the  measure  of  damages  is  the  amount  of 
the  loss  sustained  by  the  vendee  as  a  proximate,  nat- 
ural and  probable  result  of  the  breach.  Here,  as  in 
other  branches  of  contract  law,  the  intention  and  con- 
templation of  the  parties  determine  much.  In  the  ordi- 
nary case,  the  measure  of  damages  would  be  simply  the 
amount  the  vendee  must  pay  to  supply  the  deficiency  in 
quality  or  the  difference  between  the  goods  as  they  should 
have  been  and  the  goods  as  they  were;  ^^  but,  if  the  ven- 
dor, knowing  that  the  article  is  to  be  used  for  a  par- 
ticular purpose  and  that  the  vendee  will  not  be  able  to 
procure  another  article  of  the  kind  and  quality  required, 
warrants  the  article  to  be  of  a  certain  quality,  and  the 
article  turns  out  defective,  so  that  the  vendee  is  obliged 
to  give  up  the  project  for  which  the  article  was  pur- 
chased, the  vendor  may  be  compelled  to  pay  special  dam- 
ages.^ ^ 

Where  the  seller  has  contracted  to  supply  building 
material  warranted  to  be  of  a  certain  uniform  quality, 
and  actually  supplies  material  of  a  varying  quality,  and 
the  buyer,  in  the  exercise  of  reasonable  diligence,  fail- 

and   cases   there    cited.     See   also  making  it  good.     That  cannot  be 

Berkey    &    Gay    Furniture    Co.    v.  done  except  by  paying  to  the  ven- 

Hascall,    (1890)    123    Ind.    502,   24  dee    such    sum    as,    together    with 

N.  E.  336,  8  L.  R.  A.  65.  the    cash    value    of    the    defective 

16 — Tuttle    V.    Brown,    (1855)    4  article,    shall    amount    to    what   it 

Gray  (Mass.)  457,  64  Am.  Dec.  80.  would  have  been  worth  if  the  de- 

"A  warranty  on   the  sale  of  a  feet  had  not  existed.     There  is  no 

chattel  is,  in  legal  effect,  a  promise  right  in  the  vendee  to  return  the 

that    the    subject    of    sale    corre-  article  and  recover  the  price  paid, 

spornds  with  the  warranty,  in  title,  unless  there  be  fraud,  or  an  express 

soundness,  or  other  quality  to  which  agreement  for  a  return." — Gary  v. 

it  relates;  and  is  always  so  stated  Gruman,    (1843)    4    Hill    (N.    Y.) 

in  the  declaration  when  it  is  tech-  625,  40  Am.  Dec.  299. 

nically   framed.    It    naturally    fol-  17 — Cory   v.   Thames  Ironworks, 

lows  that  if  the  subject  prove  de-  etc.,    Co.,    (1868)    L.    R.    3    Q.    B. 

fective  within  the  meaning  of  the  181,  37  L.  J,  Q.  B.  68;  Whitehead 

warranty,    the    stipulation    can   be  v.    Ryder,    (1885)    139   Mass.    379, 

satisfied  in  no  other  way  than  by  31  N.  E.  736. 


SALES  OF  GOODS  229 

ing  to  ascertain  the  fact  of  non-conformity  to  the  con- 
tract, continues  to  use  the  material  in  building,  until  he 
ascertains  the  fact  of  breach,  and  then  notifies  the  seller, 
who  refuses  to  complete  his  performance,  the  measure 
of  damages  includes  not  only  the  difference  between  what 
the  buyer  bought  and  what  he  received,  but  also  the  ex- 
pense of  taking  down  and  rebuilding  the  structure.^^  Of 
course,  this  is  true  only  if  the  parties  at  the  time  of  the 
making  of  the  contract  contemplate  such  expense  as  a 
result  of  a  breach  thereof.  Likewise,  where  a  seller  of 
coal,  knowing  that  the  buyer,  being  a  wholesale  dealer, 
will  re-ship  the  coal  to  customers  without  inspection,  re- 
lying wholly  upon  the  seller  *s  agreement  to  deliver  coal 
of  the  quality  contracted  for,  the  buyer  *s  measure  of 
damages  is  not  limited  to  the  difference  between  the  value 
of  the  coal  contracted  for  and  that  of  the  coal  delivered, 
but  includes  also  the  expenses  and  necessary  disburse- 
ments incurred  in  transportation,  because  of  the  breach.** 
These  propositions  are  correct,  according  to  the  prin- 
ciples of  the  common  law,  for  the  damage  stated  was  in 
the  contemplation  of  the  parties  at  the  making  of  the 
contract;  and  they  are  correct  under  the  uniform  Sales 
Act,  because  of  the  express  provisions  thereof.^^ 

117.  Non-axjceptance  by  the  Vendee. — The  measure  and 
amount  of  the  damages  to  be  assessed  in  favor  of  a 
vendor  against  a  vendee  who  wrongfully  refuses  to  ac- 
cept the  goods  contracted  for,  varies  according  to  the 
circumstances  of  the  case.  One  of  the  most  important 
matters  to  be  considered  in  determining  the  extent  of 
the  vendee's  liability  is  the  stage  of  the  vendor's  prep- 
aration at  which  the  vendee  countermands  his  order.    If 

18— Gaseoigne  v.  Gary  Brick  Co.,  20— Mass.  Stat.  1908,  c.  237,  §  49; 

(1914)    217   Mass.   302,    104   N.   E.  Mass.  Supp.  to  Eev.  Laws,  (1902-8) 

734,  Ann.  Gas.  1917  G  336.  p.    523,    §  49, 

19 — Hanson  v.  Wittenberg, 
(1910)  205  Mass.  319,  91  N.  E, 
383, 


230  LAW  OF  DAIMAGES 

the  vendee  notifies  the  vendor  of  his  non-acceptance  sea- 
sonably, so  as  to  prevent  his  making  any  expenditures 
in  preparation  to  fulfill  the  contract,  the  damages  are 
confined  strictly  to  the  profits  that  the  vendor  would 
have  made  if  he  had  been  permitted  to  go  on  with  the 
contract.21  In  this  case,  the  vendor  cannot  make  his 
damages  any  greater  by  making  unnecessary  expendi- 
tures or  doing  unnecessary  work  after  the  countermand. 
If,  however,  the  vendee  countermands  his  order  after 
the  vendor  has,  by  purchasing  or  manufacturing  the 
goods,  prepared  to  fulfill  the  contract,  the  measure  of 
damages  is  the  excess  of  the  contract  price  over  the 
market  price  at  the  time  and  place  of  delivery  specified 
in  the  contract.^^  Sometimes  it  is  impossible  to  show 
a  market  price  at  the  exact  time  and  place  named  in 
the  contract,  and  it  then  becomes  necessary  to  show  as 
nearly  as  possible  the  real  value  of  the  goods  by  admit- 
ting testimony  as  to  the  price  a  short  time  before  or 
after  the  stipulated  time  of  delivery,  or  at  other  mar- 
kets near.^^  Upon  breach  by  the  non-acceptance  of  the 
goods,  the  vendor  can  avoid  or  lessen  his  damage  by 
selling  his  goods  in  the  market,  if  there  be  one,  and  the 
market  price  thus  marks  the  extent  to  which  he  can  avoid 
damage,  so  that  the  contract  price  minus  the  market 
price  equals  the  amount  of  his  damage.  Where  the 
goods  will  bring  as  much  as,  or  more  than,  the  contract 
price  in  the  open  market,  the  vendor  cannot  get  more 
than  nominal  damages  for  a  breach  consisting  merely 
of  non-acceptance  by  the  vendee.^* 

CASE   ILLUSTRATIONS 

1.  Plaintiff  sold  defendants  10,000  boxes  of  glass,  to  be  de- 
livered on  board  of  vessels  at  Antwerp  for  shipment  to  defend- 

21— Clark  v.  Marsiglia,  (1845)  1  23— McCormick      v.      Hamilton, 

Denio    (N.  T.)    317,  43   Am.   Dec.  (1873)    23  Grattan   (Va.)   561. 

670.  24 — Unexcelled     Fireworks     Co. 

22— Dwiggins    v.    Clark,    (1883)  v.  Polites,   (1890)    130  Pa.  536,  18 

94  Ind.  49,  48   Am.  Eep.   140.  Atl.    1058,    17   Am.   St.   Eep.   788. 


SALES  OF  GOODS  231 

ants  in  New  York.  Part  of  the  amount  was  delivered;  but,  as 
evidence  tended  to  prove,  it  was  inferior  in  quality  to  the  kind 
stipulated.  Defendants  accepted  it,  but  broke  their  contract  by 
refusing  to  accept  any  more  glass.  The  court  instructed  the 
jury  that  the  plaintiff  was  entitled  to  recover  the  difference  be- 
tween the  contract  price  and  the  market  price  at  New  York. 
Held,  error.  The  measure  of  damages  is  the  difference  between 
the  contract  price  and  the  market  price  at  the  time  and  place 
of  delivery.    The  place  of  delivery  was  Antwerp.^s 

2.  Defendants  agreed  to  buy  of  plaintiffs  paving  stones,  of 
which  there  was  no  market  value  at  the  exact  place  at  which 
they  were  to  be  delivered.  There  was,  however,  a  market  value 
at  a  point  no  great  distance  away  and  within  the  same  city.  De- 
fendants refused  to  accept  the  stones.  "If  they  were  salable, 
where  they  lay,  to  be  delivered  elsewhere,  at  a  price  larger  than 
the  cost  of  delivery  there,  the  excess  of  such  price  above  the 
cost  of  delivery  was  the  market  value  which  should  have  been 
deducted  from  the  contract  price,  in  order  to  get  at  the  dam- 
ages." The  phrase  "market  value"  should  not  be  too  narrowly 
limited  so  as  to  mean  the  precise  spot  of  deli  very  .2 « 

3.  Defendant  agreed  to  buy  50,000  cigarettes  from  plaintiff 
each  month  during  a  certain  period.  After  a  time,  defendant 
refused  to  accept  further  deliveries.  The  cigarettes  were  of  a 
kind  for  which  there  was  no  market,  in  large  quantities,  and 
there  was  evidence  that  the  goods  would  deteriorate  if  kept  for 
a  few  months.  Held,  that  the  only  measure  of  damages  that 
would  furnish  proper  indemnity  to  plaintiff  is  the  difference 
between  the  contract  price  and  the  cost  of  production.^^ 

4.  Defendant  contracted  to  buy  seventy-three  iron  shutter 
doors  of  plaintiff,  to  be  manufactured  and  erected.  On  the  next 
day,  defendant  cancelled  his  contract,  for  no  good  reason.  The 
measure  of  damages  for  the  breach  is  the  difference  between  the 
cost  of  manufacturing  and  delivering  the  article  and  the  con- 
tract priee.28 

2^— Cahen  v.  Piatt,  (1877)  69  N.  following  Todd  v.  Gamble,   (1896) 

Y.  348,  25  Am.  Eep.  203.  148   N.  Y.   382,  42   N.   E.   982,  52 

26— Barry  v.  Cavanaugh,  (1879)  L.  R.  A.  225. 
127   Mass.   394.  28— Worrell  v.  Kinnear  Mfg.  Co., 

27— Kelso  V.  Marshall,  (1897)  48  (1905)  103  Va.  719,  49  S.  E.  988,  2 

N.  Y.  Supp.  728,  24  App.  Div.  128,  Ann.  Cas.  997. 


232  LAW  OF  DAMAGES 

5.  Defendants  sold  steel  to  plaintiffs,  warranting  it  to  be  first 
class  steel,  and  knowing  that  plaintiffs  would  use  it  in  making 
oil-drills.  Immediately  upon  beginning  to  use  the  steel,  plain- 
tiffs found  that  it  was  defective,  but  continued  to  make  it  into 
drills.  Plaintiffs  had  **no  right,  after  that,  to  go  on  making 
drills,  in  the  expectation  of  recovering  for  the  expenses,  or  loss 
of  profits  of  the  defendants.  If  they  could  recover  for  making 
drills,  they  could  with  equal  propriety  recover  if  they  had  pro- 
cured it  to  make  into  watch-springs,  one  pound  of  which  would 
be  worth  tons  of  unwrought  steel. ' '  ^9 

29— Draper  v.  Sweet,   (1868)   66 
Barb.   (N.  Y.)   145. 


CHAPTER    XXX 
Contracts  to  Pay  or  Lend  Money 

118.  Failure  to  Pay  Money  Owed. — Where  one  party 
agrees  to  pay  another  a  certain  sum  on  a  certain  date 
and  fails  to  do  so,  the  recovery  is  limited  to  the  sum 
agreed  upon,  with  legal  interest  from  the  date  of  the 
breach.  So,  on  the  failure  of  a  party  to  meet  his  obli- 
gation on  a  negotiable  instrument,  the  amount  recover- 
able is  the  principal  and  the  stipulated  interest  to  the 
time  of  the  breach,  plus  interest  at  the  legal  rate  for 
the  time  subsequent  to  the  breach,  unless  a  different  rate 
has  been  agreed  upon  for  the  subsequent  period.^  The 
reason  for  so  limiting  the  recovery  on  negotiable  instru- 
ments is  not  that  they  constitute  any  exception  to  the 
general  rule  as  to  damages  in  contract,  but  merely  that 
the  parties  to  a  negotiable  instrument  are  not  taken  to 
have  any  consequential  results  in  view.  Their  contract 
is  in  regard  merely  to  the  payment  of  money,  and  does 
not  in  any  way  contemplate  consequences. 

Where  A  agrees  with  B  that  B  is  to  procure  judgment 
against  C  and  levy  upon  and  expose  for  sale  C's  goods, 
and  that  A  is  to  bid  for  them  the  amount  of  the  judg- 
ment, and  A  fails  to  attend  the  sale,  and  the  goods  bring 
only  a  nominal  sum,  B  is  entitled  to  collect  from  A  the 
amount  of  the  judgment  plus  interest  and  costs.  Such 
an  agreement  is  virtually  an  agreement  to  pay  the  debt 
of  another.^ 

1 — This  is  the  correct  rule  as  to  damages.      See    Fearing    v.    Clark, 

the  interest  for  the  period  subse-  (1860)  16  Gray  (Mass.)  74,  77  Am. 

quent  to  the  breach,  on  principle  Dec.  394. 

and    according    to    the    weight    of  2 — Wicker  v.  Horppock,  (1867)   6 

authority,  the  interest  for  the  peri-  Wall.   (U.  S.)  94,  18  L.  ed.  752. 
od    after   the   breach    being   mere 

233 


234  LAW  OF  DAMAGES 

119.  Failure  to  Lend  Money. — The  failure  or  refusal  of 
one  party  to  lend  another  money  which  he  has  agreed  to 
lend  results  in  direct  damage  to  the  borrower  to  the 
extent  of  the  excess  of  the  legal  rate  of  interest  over 
the  contract  rate  agreed  upon,  and  this  is  all  that  can 
ordinarily  be  recovered.  It  is  presumed  that  the  in- 
tending borrower  can  go  into  the  money  market  and  get 
money  at  the  legal  rate  of  interest,  so  that  he  is  not  really 
damaged  to  a  greater  extent  than  the  difference  between 
this  rate  and  the  rate  agreed  upon.  Kemote  damages 
can  no  more  be  assessed  here  than  elsewhere.^  But  if 
the  borrower  actually  has  to  pay  a  lawful  rate  in  excess 
of  the  legal  rate,  he  can  recover  the  excess  of  such  rate 
over  the  contract  rate.*  There  are  instances  in  which 
the  parties  have  entered  into  a  contract  for  a  loan  with 
certain  elements  of  consequential  damage  in  contempla- 
tion as  likely  to  occur  in  the  event  of  the  failure  of  the 
borrower  to  procure  the  money  promptly  at  the  stipu- 
lated time ;  and  then  we  have  the  possibility  of  assessing 
damages  for  such  consequential  elements,  which  could 
not  be  taken  into  consideration  in  the  ordinary  case.* 

3 — Savings     Bank     v.     Asbury,  tracted  to  make  the  loan  neglects 

(1897)   117  Calif.  96,  48  Pac.  1081.  or  refuses  to  do  so,  and  the  owner 

The  awarding  of  substantial  dam-  is  compelled  to  procure  money  else- 
ages  for  breach  of  contract  to  lend  where,  the  measure  of  damages  is 
money  is  very  rare.  "One  dollar  the  difference,  if  any,  between  the 
in  legal  tender  is  worth  no  more  interest  he  contracted  to  pay,  and 
than  another.  *  *  •  It  must  be  what  he  was  compelled  to  pay  to 
made  to  appear  that  the  borrower  procure  the  money;  not  exceeding, 
had  been  unable  to  obtain  a  like  perhaps,  the  highest  rate  allowed 
sum  on  like  terms.  It  would  fur-  by  law." — Lowe  v.  Turpie,  (1896) 
ther  be  necessary  to  show  definite-  147  Ind.  652,  44  N.  E.  25,  47  N.  E. 
ly  and  distinctly  that  the  damage  150,  37  L.  R.  A.  233.  See  also: 
(other  than  that  arising  from  hav-  New  York  Life  Insurance  Co.  v. 
ing  to  pay  a  higher  rate  of  interest)  Pope,  (1902)  24  Ky.  Law  485,  68 
was  in  contemplation  of  the  in-  S.  W.  851;  McGee  v.  Wineholt, 
tending  lender  at  the  time  he  made  (1901)  23  Wash.  748,  63  Pac.  571. 
the  agreement  to  lend." — Anderson  5 — Doushkess  v.  Burger  Brewing 
v.  Hilton  &  Dodge  Lumber  Co.,  Co.,  (1897)  -  47  N.  Y.  Supp.  312. 
(1905)   121  Ga.  688,  49  S.  E.  725.  20  App.  Div.  375. 

4 — "When  the  person  who  con- 


CONTRACTS  TO  PAY  OR  LEND  MONEY    235 

To  constitute  a  basis  of  recovery,  consequential  elements 
must  be  shown  to  have  been  in  the  contemplation  of 
the  parties.^  Frequently  the  breach  of  an  agreement  to 
lend  money  gives  rise  to  a  claim  for  no  more  than  nomi- 
nal damages,  for  the  stipulated  interest  is  often,  if  not 
usually,  the  legal  rate  or  higher,  so  that  the  borrower, 
upon  breach,  can  simply  go  into  the  market  and  get  money 
on  as  good  terms  as  those  of  the  contract  and  so  suf- 
fers no  direct  loss  whatever,  and  his  consequential  loss, 
as  has  been  seen,  cannot  be  made  a  basis  of  damages 
unless  it  has  been  contemplated  by  the  parties  at  the 
time  of  making  the  contract.'^  In  fact,  in  such  a  case 
as  that  just  supposed,  consequential  loss  would  not  ordi- 
narily occur. 

CASE   ILLUSTRATIONS 

1.  A  broke  his  contract  to  lend  B  certain  money.  Failing  to 
get  the  money,  B  had  to  close  out  its  business,  sacrificing  its 
property.  Held,  that  this  element  of  damage  is  too  remote  and 
entirely  speculative.^ 

2.  Defendant  contracted  to  advance  money  with  which  plain- 
tiff was  to  construct  a  mill-dam  of  stone  and  concrete  in  place 
of  the  wooden  dam  that  he  already  had,  and  to  furnish  logs, 
by  sawing  which  at  a  stipulated  price  plaintiff  was  to  be  en- 
abled to  repay  the  money  advanced,  and  also  to  furnish  other 
logs  which  the  plaintiff  might  saw.  Before  defendant's  breach, 
plaintiff,  relying  on  his  contract  with  defendant,  tore  away  his 
wooden  dam  and  water-house  and  expended  several  hundred 
dollars  of  his  own  money  in  procuring  and  preparing  stone  for 
the  proposed  dam.  Held  that,  under  these  circumstances,  plain- 
tiff can  get  substantial  damages,  and  need  not  show  that  he  has 
tried  to  procure  a  loan  elsewhere.^ 

6 — Equitable    Mortgage     Co.    v,  8 — C.    B.    Coles    &    Sons    Co.    v. 

Thorn,    (Tex.    Civ.   App.    1894)    26  Standard  Lumber   Co.,    (1909)    150 

S.   W.   276.  N.  Car.   183,  63  S.  E.  736. 

7— Lowe   V.    Turpie,    (1896)    147  9— Bixby-Theison  Lumber  Co.  v. 

Ind.    652,   44   N.   E.    25,   47   N.  E.  Evans,  (WIO)   167  Ala.  431,  52  So. 

150,  37  L.  B.  A.  233.  843,  29  L.  R.  A.   (N.  S.)   194. 


cMptee  xxxi 

Contracts  for  Work,  Labor,  and  Services 

120.  Special  and  Implied  Contracts. — In  deciding  what 
is  to  be  the  measure  of  compensation  to  an  employee 
under  a  contract  for  any  kind  of  services,  it  is  of  first 
importance  to  know  whether  he  is  relying  upon  an  ex- 
press contract  for  a  stated  compensation  per  unit  of 
time  or  per  piece  of  work,  or  is,  without  an  express  con- 
tract or  after  breach  of  express  contract,  suing  on  a  quan- 
tum meruit  for  the  reasonable  value  of  services  rendered. 
In  the  former  case,  the  obligation  of  the  employer  is 
express  or  special,  and  the  amount  of  compensation  upon 
compliance  with  the  contract  by  the  employee  is  the 
stated  amount,  no  more  and  no  less.^  In  the  latter  case, 
an  express  contract  either  never  existed  or  is  treated  as 
being  rescinded  and  therefore  nonexistent;  and  so  the 
employer's  obligation  is  implied,  and  he  must  pay  what 
the  services  rendered  are  reasonably  worth.^  Where 
services  have  been  rendered  by  plaintiff  at  the  express 
request  of  the  defendant,  but  without  an  express  agree- 
ment as  to  amount  of  compensation,  the  sum  to  be  paid 
the  plaintiff  is  not  to  be  determined  by  the  amount  of 
benefit  which  the  defendant  receives.  The  compensation 
is  determined  by  the  value  of  the  services.^ 

121.  Right  of  Employee  to  a  Quantum  Meruit  Where 
He  Has  Not  Completed  His  Term  of  Service. — Where  an 

1— Brigham    v.    Hawley,    (1855)  3— Stowe  v.  Buttrick,  (1878)  125 

17  111.  38.  Mass.  449. 

2— Stowe     V.     Buttrick,     (1878) 
125  Mass.  449. 

236 


CONTRACTS  FOR  SERVICES  28t 

employee  wilfully  and  wrongfully  quits  the  service  of 
his  employer  before  the  end  of  the  term  for  which  he 
has  contracted  to  work,  it  has  been  held  that  he  can 
recover  nothing ;  *  but  the  more  modern  and  more  just 
holding  is  that,  even  if  the  employee  has,  without  excuse, 
quit  the  employer 's  service,  he  has  a  right  to  recover  on 
a  quantum  meruit  the  reasonable  value  of  the  services 
he  has  rendered,  minus  the  amount  of  loss  caused  to 
the  employer  by  the  breach  of  contract.^  A  fortiori, 
where  completion  of  performance  by  the  employee  is 
excused,  he  may  recover  on  a  quuntum  meruit  for  what 
he  has  actually  done,  subject  to  a  reduction  as  in  the 
case  above  stated.^  If  the  employee's  service  is  in- 
terrupted by  the  act  of  God  or  inevitable  necessity,  it 
is  reasonable  to  suppose  that  this  is  such  an  interrup- 
tion as  the  parties  contemplated  as  being  possible,  and 
that  they  therefore  considered  the  performance  of  the 
service  as  conditioned  upon  freedom  from  such  inter- 
ference. Modern  courts  very  readily  allow  the  employee 
to  recover  on  a  quantum  meruit  for  what  he  has  done 

4 — Stark    v.    Parker,    (1824)     2  munityis,  that  the  hired  laborer 

Pick.    (Mass.)    267,    13    Am.    Dec.  shall   be   entitled  to  compensation 

425.  for  the  service  actually  performed, 

5 — Britton  v.  Turner,  (1834)  6  though  he  do  not  continue  the  en- 
N.  H.  481,  26  Am.  Dec.  713.  "In  tire  term  contracted  for,  and  such 
fact,  we  think  the  technical  rea-  contracts  must  be  presumed  to  be 
soning,  that  the  performance  of  made  with  reference  to  that  un- 
the  whole  labor  is  a  condition  prec-  derstanding,  unless  an  express 
edent,  and  the  right  to  recover  stipulation  shows  the  contrary, 
anything  dependent  upon  it — that  Where  a  beneficial  service  has  been 
the  contract  being  entire  there  can  performed  and  received,  therefore, 
be  no  apportionment — and  that  under  contracts  of  this  kind,  the 
there  being  an  express  contract  no  mutual  agreements  cannot  be  con- 
other  can  be  implied,  even  upon  sidered  as  going  to  the  whole  of 
the  subsequent  performance  of  the  consideration,  so  as  ta  make 
service — is  not  properly  applicable  them  mutual  conditions,  the  one 
to  this  species  of  contract,  where  precedent  to  the  other,  without  a 
a  beneficial  service  has  been  actual-  specific  proviso  to  that  effect." 
ly  performed;  for  we  have  abund-  6 — Kyan  v.  Dayton,  (1856)  25 
ant  reason  to  believe  that  the  Conn,  188,  65  Am.  Dec.  560;  Green 
general  understanding  of  the  com-  v.  Gilbert,  (1867)   21  Wis.  401. 


238  LAW  OF  DAMAGES 

up  to  the  time  of  interruption  by  sickness  or  other  act 
of  God  or  inevitable  accident,*^  although  this  was  not 
formerly  the  rule.® 

122.  Entirety  of  Recovery. — Probably  no  phase  of  the 
subject  treated  in  this  chapter  has  given  courts  more  of 
difficulty  than  has  the  question  whether  the  wrongfully 
discharged  employee  may  recover  damages  for  his  whole 
loss,  present  and  future,  upon  his  bringing  action  before 
the  agreed  period  of  employment  has  elapsed.  One  view 
is  that  the  contract  is  entire,  and  that  therefore,  although 
the  bringing  of  one  suit  at  a  time  prior  to  the  end  of  the 
contract  period  exhausts  the  employee's  right  to  dam- 
ages, his  compensation  for  loss  of  wages  can  be  calculated 
only  to  the  date  of  the  trial.  This  is  on  the  ground  that 
damages  for  the  loss  of  future  wages  would  be  uncer- 
tain and  conjectural.^  Another  view,  which  is  not  very 
satisfactory  in  its  practical  workings,  is  that  the  em- 
ployee may  recover  for  losses,  present  and  future,  in 
one  suit,  even  though  the  suit  be  brought  before  the  end 
of  the  stipulated  period  of  service.^^  The  administering 
of  such  a  rule  necessitates  speculation  and  wild  conjec- 
ture by  the  jury.  A  third  rule,  which,  it  is  submitted, 
is  more  consonant  with  actual  justice  than  either  of  the 
others,  is  that  the  wrongfully  discharged  employee  may 

7 — Clark    v.    Gilbert,    (1863)    26  ages  arising  from  such  breach;  and 

N.  Y.  279,  84  Am.  Dec.  189,  allow-  this  remedy  he  may  pursue  the  mo- 

ing  recovery  at  contract  rate.  ment  the  contract  is  broken.     Sec- 

8 — Cutter  v.  Powell,  (1795)  6  T.  ondly,  he  may  treat  the  contract  as 

R.  320,  2  Sm.  L.  Cas.  1,  6  E.  R.  C.  rescinded,  and  immediately  sue  on 

627.  the  quantum  meruit,  for  the  work 

9 — ^Fowler  v.  Armour,  (1854)   24  actually  performed.    Or,  thirdly,  he 

Ala.    194;    Colburn   v.   Woodworth,  may  wait  until  the  termination  of 

(1860)  31  Barb.  (N.  Y.)  381;  Gor-  the  period  for  which  he  was  hired 

don  V.  Brewster,  (1858)  7  Wis.  355.  and  claim  as  damages   the  wages 

"A  party  discharged  under  such  agreed  to  be  paid  by  the  con- 
circumstances  has  three  remedies,  tract." — Colburn.  v,  Woodworth, 
either  of  which  he  may  pursue  at  supra. 

his  election.     First,  he  may  bring  10 — Sutherland  v.  Wyer,   (1877) 

a  special  action  to  recover  the  dam-  67  Me.  64. 


CONTRACTS  FOR  SERVICES  239 

sue  from  time  to  time  during  his  contract  period  of  serv- 
ice, as  damage  accrues.  The  principal  case  upholding 
this  rule  urges,  with  irresistible  common  sense,  that  the 
necessary  effect  of  the  first  rule  is,  in  the  case  of  a 
thirty-year  contract,  to  restrict  the  plaintiff's  recover)'' 
to  damages  for  only  the  period  of  the  statute  of  limita- 
tions, which  would  be  a  period  of  not  more  than  five  or 
six  years  from  the  time  of  the  breach,  as  he  must  bring 
his  action  within  that  period.  The  same  case  also  points 
out  the  absurdity  of  the  second  view,  which  may  compel 
the  employer  to  pay  damages  for  a  loss  of  wages  which 
may  never  occur  or  may  deny  the  employee  indemnity 
for  a  loss  which  later  does  occur.^^ 

123.  Causation. — Either  party,  employer  or  employee, 
upon  breaking  the  contract  is  liable  to  the  other  party  for 
all  damage  that  is  proximate,  probable,  and  conforming 
to  the  universal  requirement  of  certainty  of  proof.  Where 
the  breach  consists  of  the  employee's  wrongfully  quit- 
ting the  emplo\Tnent,  the  employer  is  not  always  con- 
fined to  such  damages  as  would  enable  him  to  employ 
another  to  take  the  employee's  place.  If  he  has  sus- 
tained loss  which  is  the  proximate,  natural  and  prob- 
able result  of  the  employee 's  breach,  he  may  recover  for 

11 — ' '  If  the  action  is  com-  ages.  His  contract  was  not  a  spee- 
menced  immediately  after  the  ulative  one,  and  the  law  should 
breach,  how  can  prospective  dam-  not  make  it  such.  That  men  can 
ages  be  assessed  for  this  thirty  and  do  find  employment  is  the  gen- 
years,  or  for  even  one  year?  To  eral  rule,  and  enforced  idleness  the 
presume  that  the  discharged  serv-  exception.  It  should  not  be  pre- 
ant  will  not  be  able  for  a  large  sumed  in  advance  that  the  excep- 
part  of  that  time  to  obtain  other  tional  will  occur." — McMullen  v. 
employment,  and  award  him  large  Dickinson  Co.,  (1895)  60  Minn, 
damages,  might  be  grossly  unjust  156,  62  N.  W.  120,  27  L.  E.  A.  409, 
to  the  defendant.  Again,  the  serv-  51  Am.  St.  Rep.  511.  Accord  on 
ant  is  entitled  to  actual  indemnity,  right  of  employee  to  bring  actions 
not  to  such  speculative  indemnity  from  time  to  time:  Isaacs  v.  Da- 
as  must  necessarily  be  given  by  vies,  (1881)  68  Ga.  169. 
awarding    him     prospective     dam- 


240  LAW  OF  DAMAGES 

such  loss.^2  The  employer  has  a  right  to  recover  for 
expenditures  made  in  a  reasonable  effort  to  avoid  con- 
sequences of  the  employee's  breach;  which  expenditures 
usually  include  the  whole  cost  of  getting  some  one  else 
to  do  the  work,  if  the  defendant,  breaker  of  the  contract, 
has  already  been  paid  in  full,^^  or,  if  he  has  not  been  paid, 
the  difference  between  the  contract  price  and  the  actual 
cost  of  the  work,  if  the  contract  price  is  less  than  the 
actual  cost  to  the  plaintiff.^* 

124.  Liquidatian  of  Damages- -Because  of  the  very 
numerous  attempts,  some  fair  and  others  very  unfair, 
to  liquidate  damages  for  breach  of  a  contract  of  serv- 
ice by  an  employee,  it  becomes  necessary  to  consider 
briefly  the  subject  of  stipulated  damages  in  such  con- 
tracts. The  same  general  principles  as  to  the  validity 
or  invalidity  of  an  agreement  for  liquidated  damages 
govern  here  as  govern  elsewhere.  Attempts  at  liquida- 
tion of  damages  in  these  contracts  usually  take  one  of 
two  forms:  first,  an  agreement  that  the  employee,  upon 
wrongfully  quitting  his  employment  before  the  end  of 
his  term,  shall  forfeit  whatever  amount,  then  due  him, 
remains  in  the  hands  of  the  employer;  or,  second,  an 
agreement  that  the  employee  shall  forfeit  a  stated  sum 
in  case  of  such  breach.  The  former  arrangement  is  not 
enforceable,  being  a  very  clear  and  flagrant  case  of  a 
contract  for  a  penalty,  as  the  amount  is  without  limit, 
or  at  any  rate,  it  is  certainly  not  limited  to  such  an 
amount  as  would  fairly  compensate  the  employer  for 
a  breach.  Therefore,  in  case  of  the  breach  of  such  a 
contract  by  the  employee,  he  is  liable  only  in  such  an 
amount  as  will  fairly  compensate  the  employer  for  the 
damages  caused  by  the  breach,  the   stipulation  being 

12— Horuser  v.  Pearee,  (1874)  13  14— Truitt    v.    Fahey,    (1902)    3 

Kan.  104.  Pen.  (Del.)   573,  52  Atl.  339. 

13— Plunkett  v.  Meredith,  (1903) 
72  Ark.  3,  77  S.  W.  600. 


CONTRACTS  FOR  SERVICES  241 

treated  as  for  a  penalty. ^^  In  the  second  class  of  cases, 
we  have,  if  the  stated  sum  be  reasonable,  a  case  of  per- 
fectly valid  liquidation  of  damages.^® 

125.  Avoidable  Consequences. — Where  either  party  to 
an  agreement  for  work  or  services  breaks  the  agree- 
ment, it  is  the  duty  of  the  other  party  to  make  reason- 
able effort  to  avoid  injurious  consequences  likely  to  flow 
from  the  breach,  as  in  the  case  of  any  other  kind  of 
contract. 

A  worker  wrongfully  discharged  before  the  end  of  his 
term  of  service  must  exercise  due  diligence  in  attempt- 
ing to  avoid  or  mitigate  his  loss.  He  is  not  warranted 
in  lying  idle  and  not  attempting  to  secure  employment 
with  another  employer,  but  must  make  a  reasonable  ef- 
fort to  make  his  loss  as  little  as  possible  by  getting  work 
elsewhere.^'^  His  duty  is  not  held,  however,  to  necessi- 
tate his  substantially  changing  occupations  ^^  or  going 
outside  the  locality  in  which  he  has  been  working.^  ^  If 
he  is  successful  in  procuring  employment  at  the  same 
wages  he  was  to  procure  under  the  contract,  it  is  ap- 
parent that  his  damages  are  nominal.  As  the  services 
under  a  mere  contract  of  hire  are  strictly  personal,  the 
worker  cannot  carry  out  two  such  contracts  at  one  time. 
With  these  facts  in  view,  it  is  necessary  to  fix  the  dam- 
ages  of  the  wrongfully  discharged  employee  under  a 

15 — Schrimpf  v.  Tennessee  Mfg.  19 — Costigan  v.  Mahawk,  etc.,  R. 

Co.,   (1887)   86  Tenn.  219,  6  S.  W.  Co.,    (1846)    2   Denio    (N.   Y.)    609, 

131,  6  Am.  St.  Eep.  832.  43  Am.  Dec.  758.     The  wrongfully 

16 — Tennessee  Mfg.  Co.  v,  James,  discharged   employee   may    recorver 

(1892)  91  Tenn.  154,  18  S.  W.  262,  at  the  contract  rate  for  the  service, 

15  L.  R.  A.  211,  30  Am.  St.  Rep.  from  the  time  of  the  discharge  to 

865.  the   end   orf   the   term,   if   he   sues 

17 — Cooper  v.  Stronge,  etc.,  Co.,  after  the  whole  period  has  elapsed, 

(1910)    111  Minn.  177,  126  N.  W.  unless  the  employer  shows  in  miti- 

541,  27  L.  R.  A.   (N.  S.)    1011,  20  gation  that  the  employee  has  avoid- 

Ann.  Cas.  663.  ed  or  could  have  avoided  the  loss 

18 — Cooper  v.  Stronge,  etc.,  Co.,  by  taking  another  similar  position 

supra.  in  the  same  region. 
Bauer  Dam. — 16 


242  •  LAW  OF  DAMAGES 

contract  of  hire  for  a  stated  period,  at  the  difference  be- 
tween the  contract  wage  and  the  wage  he  is  compelled 
to  take  in  order  to  avoid  as  far  as  possible  the  loss  re- 
sulting from  his  discharge. 

But  where  the  contract  is  to  do  a  specific  service,  not 
personal  in  its  nature,  as  to  build  a  house,  the  contractor, 
upon  breach  by  the  other  party,  is  not  obliged  to  seek 
other  contracts  in  order  to  avoid  consequences;  and,  if 
the  contractor  does  obtain  other  contracts,  the  offend- 
ing party  has  no  right  to  have  the  benefit  of  such  other 
contracts  subtracted  from  the  losses  for  which  he  must 
compensate  the  contractor.  The  same  is  true  as  to  all 
contracts  except  those  for  strictly  personal  services. 
The  reason  for  the  rule  is  that  a  contractor  may  right- 
fully carry  out  any  number  of  contracts  at  any  one  time, 
if  they  be  not  for  personal  services,  so  that  each  con- 
tract is  independent  of  the  others,  although  possibly 
simultaneous  with  them  in  execution,  and  each  contract 
stands  on  its  own  feet  as  to  profits  and  losses,  and  losses 
from  its  breach  are  not  increased  or  decreased  by  the 
making  of  other  contracts.^^ 

In  no  case  can  a  contractor,  who  is  wrongfully  ordered 
by  the  other  party  to  cease  work,  continue  to  w^ork  and 
thus  enhance  his  damages.^^ 

"Where  the  defendant  has  contracted  to  do  a  certain 
service  for  plaintiff  and  has  failed  to  do  it,  the  plaintiff 
cannot  stand  by  and  permit  injurious  consequences  to 
occur,  but  must  make  a  reasonable  effort  to  avoid  dam- 
age, and  must,  if  necessary  and  possible,  make  other 
contracts  for  that  purpose.^^ 

126.  The  Doctrine  of  Constructive  Service. — According 
to  the  weight  of  authority,  as  already  stated,  it  is  the 

20— Sullivan  v.  McMillan,  (1896)  Spar  Co.,   (1912)    149  Ky.  65,   147 

37  Fla.  134,  19  So.  340,  53  Am.  St.  S.  W.  934,  Ann.  Cas.  1914  A  803. 
Rep.  239.  22 — Brant  v.  Gallup,   (1885)    111 

21— Harness   v.   Kentucky  Fluor  111.  487. 


CONTRACTS  FOR  SERVICES  243 

duty  of  the  wrongfully  discharged  employee  to  avoid 
or  mitigate  his  loss  by  seeking  employment  by  a  new- 
employer.  This  is  the  obviously  correct  rule.  Some  of 
the  earlier  English  cases  and  the  cases  in  a  few  Ameri- 
can jurisdictions  hold  to  a  very  different  doctrine, — that 
of  "constructive  service."  According  to  this  doctrine, 
the  wrongfully  discharged  employee  may  remain  idle, 
keeping  himself  in  readiness  to  perform,  and,  at  the  end 
of  the  stipulated  term  of  service,  may  recover  wages  for 
the  entire  period  for  which  he  has  contracted.^^  Such 
a  doctrine  seems  unsound,  since  it  squarely  violates  the 
important  general  rule  that  one  must  make  a  reason- 
able effort  to  avoid  the  consequences  of  any  wrong.  The 
doctrine  of  constructive  service  is  now  repudiated  in 
England  and  in  most  American  jurisdictions.^* 

127.  Mitigation. — Where  an  employer  is  sued  for  dam- 
ages under  a  contract  which  he  has  violated  by  wrong- 
fully discharging  his  employee,  he  has  a  right  to  set  up 
in  mitigation  the  fact  that  the  employee  has  secured 
other  employment  during  the  stated  period  of  service, 
and  that  he  has  received  compensation  for  it,  or  that 
he  could  have  reduced  his  damages  by  taking  other  em- 
ployment.2®  In  contracts  for  service,  as  in  all  other  con- 
tracts, any  fact  that  has  lessened  the  damage  caused  by 
a  breach,  may  be  shown  in  mitigation. 

128.  Function  of  the  Jury. — In  deciding  the  value  of 
services,  the  jury  is  not  bound  to  act  in  accordance  with 
the  statements  of  any  witness,  nor  is  it  obliged  to  aver- 
age the  values  stated  by  different  witnesses.  The  jury 
may  disbelieve  or  disregard  part  or  all  of  the  testimony 

23— Gandell  v.  Pontigny,  (1816)  Minn.  156,  62  N.  W.  120,  27  L.  R. 

4  Campb.  375;  Strauss  v.  Meertief,  A.  409,  51  Am.  St.  Eep.  511. 

(1879)   64  Ala.  299.  25— Benziger  v.  Miller,  (1874)  50 

24 — Goodman  v.  Pocock,    (1850)  Ala.     206;     Heavilon     v.    Kramer, 

15  Adol.   &  El.    (N.   S.)    574;   Me-  (1869)   31  Tnd.  241. 
Mullen  V.  Dickinson  Co.,  (1895)  60 


^  LAW  OF  DAMAGES 

on  this  point  and  act  upon  the  jurors'  general  knowl- 
edge of  the  value  of  such  services.^® 

It  has  been  held,  and,  it  seems,  very  properly,  that,  in- 
asmuch as  a  jury  is  not  obliged  to  accept  or  follow  the 
statements  of  witnesses,  expert  or  otherwise,  as  to  the 
value  of  services,  where  such  value  is  a  matter  of  com- 
mon knowledge,  but  may  use  the  knowledge,  common 
sense  and  experience  of  members  of  the  jury,  so  the  plain- 
tiff, in  order  to  lay  a  foundation  for  the  assessment  of 
compensatory  damages  in  such  an  action,  need  not  prove 
the  value  of  such  services  at  all,  the  jury  having  a  right 
to  decide  their  value  in  the  absence  of  testimony  on  the 
point,  just  as  it  could  disregard  such  testimony  if  it  is 
given.^^ 

CASE   ILLUSTRATIONS 

1.  A  contracted  to  work  for  B  for  one  year  for  $120.  A  worked 
for  B  9V^  months,  and  then  failed  to  complete  his  contract.  A 
can  recover  on  a  qwcmtum  meruit  for  the  time  of  his  actual  serv- 


ice.^^ 

2.  A  and  B  agreed  to  cut  all  timber  of  certain  size  upon  C's 
land  and  to  deliver  it  to  C.  When  A  and  B  had  partly  per- 
formed the  contract,  C  died.  D,  his  personal  representative, 
refused  to  go  on  with  the  contract.  A  and  B  sue  D  for  breach 
of  contract.  Held,  that  A  and  B  were  under  no  legal  obliga- 
tion to  get  other  contracts  and  enter  upon  the  performance  of 

26 — ^Head    v.    Hargrave,    (1881)  that  the  issue  should  be  determined 

105  U.  8.  45,  26  L.  ed.  1028.     "It  by   the  opinions   of  the   attorneys 

was   the  province  of   the   jury   to  and  not  by  the   exercise   orf   their 

weigh  the  testimony  of  the  attor-  own    judgment    of    the    facts    on 

neys  as  to  the  value  of  the  services,  which  those  opinions  were  given." 

by  reference  to   their  nature,  the  The  services  in  question  were  those 

time  occupied  in  their  performance,  of  an  attorney, 

and  other  attending  circumstances,  27 — Hossler  v.  Trump,  (1900)  62 

and  by   applying   to  it  their  own  O.   St.    IS'D,   56   N.    E.    656,   where 

experience   and  knowledge  of  the  plaintiff  sued  for  the  value  of  her 

character  of  such  services.    To  di-  services  as  a  domestic  servant  and 

reet  them  to  find  the  value  of  the  nurse. 

services  from  the  testimony  orf  the  28 — Britton  v.  Turner,   (1834)    6 

experts  alone  was  to  say  to  them  N.  H.  481,  26  Am.  Dec.  713. 


CONTRACTS  FOR  SERVICES  245 

them  in  order  to  lessen  their  damage  and  thus  benefit  the  de- 
fendant. This  was  not  a  contract  for  strictly  personal  services.^® 
3.  Defendants  employed  plaintiffs  to  do  certain  stone  work, 
masonry,  and  blasting,  on  three  miles  of  railroad.  Before  the 
completion  of  the  work,  defendants  directed  plaintiffs  to  cease 
work.  **  Treating  the  plaintiffs  as  having  been  prevented  from 
executing  their  part  of  the  contract  by  the  act  of  the  defendants, 
we  think  the  plaintiffs  are  entitled  to  recover,  as  upon  a  quantum 
meruit,  the  value  of  the  services  they  had  performed  under  it, 
without  reference  to  the  rate  of  compensation,  specified  in  the 
contract.  They  might  doubtless  have  claimed  the  stipulated 
compensation,  and  have  introduced  the  contract  as  evidence  of 
the  defendants'  admission  of  the  value  of  the  services.  And 
they  might,  in  addition,  in  another  form  of  action,  have  re- 
covered their  damages  for  being  prevented  from  completing  the 
whole  work.  In  making  these  claims  the  plaintiffs  would  be  act- 
ing upon  the  contract  as  still  subsisting  and  binding ;  and  they 
might  well  do  so;  for  it  doubtless  continued  binding  on  the  de- 
fendants. But  we  think  the  plaintiffs,  upon  the  facts  stated 
in  the  report  of  the  auditor,  were  at  liberty  to  consider  the 
contract  as  having  been  rescinded  from  the  beginning,  and  to 
claim  for  the  services  they  had  performed,  without  reference 
to  its  terms."  30 

29— Sullivan  v.  McMillan,  (1896)  30— Derby  v.  Johnson,  (1848)  21 

37  Fla.  134,  19  So.  340,  53  Am.  St.      Vt.  17. 
Bep.  239. 


CHAPTER  XXXII 
Insueance  ^ 

129.  The  Term  *' Insurance." — The  one  word  ** insur- 
ance" is,  unfortunately,  used  to  designate  contracts 
widely  different  in  purpose  and  import.  Life  insurance 
and  fire  insurance  are  not  insurance  in  the  same  sense 
at  all ;  and  it  is  necessary,  at  the  outset,  that  the  student 
bear  in  mind  that,  in  this  chapter,  there  are  presented 
subjects  which  are  heterogeneous  as  to  principles  of  com- 
pensation, although  homogeneous  as  to  some  of  the  other 
features. 

130.  Life  and  Accident  Insurance. — ^Relatively  simple 
are  policies  of  either  life  insurance  or  accident  insurance. 
The  purpose  of  these  policies  is  not,  strictly  speaking, 
to  indemnify  the  insured  or  the  beneficiary  against  any 
loss.  "Where  a  life  insurance  policy  is  for  $1,000,  the 
obligation  of  the  company  to  pay  $1,000  is  in  no  way 
conditioned  upon  the  result  of  an  inquiry  whether  the 
life  of  the  insured  was  reasonably  worth  that  amount; 
and  where  an  accident  insurance  company  promises  to 
pay  the  insured  $10  per  week  as  long  as  he  lives,  in  the 
event  of  his  losing  a  hand,  the  payment  must  be  made, 

1.  The   breadth    of   this   subject  modified    by    special    stipulations, 

and  the  variety  of  form  assumed  Because   of  lack  of   space,   no  at- 

by  insurance  policies,  and  the  ad-  tempt  is  made  to  cover  the  meas- 

ditiorn    of    various    special    stipula-  ure  of  compensation  in  marine  in- 

tions  in  some  policies,  make  it  im-  surance.     The   purpose   of   marine 

possible  to  make  so  brief  a  state-  insurance,  like  that   of  fire  insur- 

ment  as  this  more  than  very  gen-  ance,    is    indemnity    against    loss. 

eral.    Only  general  rules  are  given,  The   usual   marine   insurance   con- 

of   which    the    operation    is    often  tract  is  a  "valued  policy,"  with 

246 


INSURANCE  247 

whether  it  can  be  shown  that  his  hand  is  financially  worth 
$10  per  week  to  him  or  not.  The  reason  why  no  inquiry 
as  to  the  actual  loss  of  the  beneficiary  or  the  insured  is 
tolerated  in  these  cases  is  simply  that  neither  the  life  nor 
the  accident  policy  is  a  contract  of  indemnity  for  loss. 
Both  of  these  contracts  are  mere  promises  to  pay  certain 
sums  upon  the  happening  of  certain  events.  When  the 
specified  event  happens,  the  agreed  sum  must  be  paid.^ 

131.  Wrongful  Cancellation  of  Life  Insurance  Policy 
by  Insurer. — It  sometimes  happens  that  a  life  insurance 
company  wrongfully  cancels  a  policy  during  the  life  of 
the  insured.  If  this  wrong  is  committed  while  the  age  and 
health  of  the  insured  are  such  as  to  permit  of  his  pro- 
curing insurance  with  another  company,  the  measure  of 
damages  is  the  reasonable  expense  immediately  incurred 
by  the  insured  in  becoming  insured  again,  plus  any  in- 
crease in  premiums  he  may  find  it  necessary  to  pay  for 
the  probable  duration  of  the  remainder  of  his  life  or  of 
the  premium-paying  period.^  If  the  insurer  wrongfully 
cancels  the  policy  before  changes  in  the  age  and  health 
of  the  insured  have  increased  the  premium  rate,  the 
measure  of  damages  is  the  amount  of  premiums  already 
paid,  plus  interest  thereon.*  But  a  different  measure  of 
damages  from  either  of  these  applies  in  a  case  wherein 
the  company  wrongfully  cancels  the  life  policy  at  a  time 

principles    of    compensation    some-  assumed  by  the  insurer.     No  ade- 

what  similar  to  those  discussed  in  quate   introduction   to   the   subject 

connection  with  fire  insurance.  The  can  be  given  here, 

intention    of    the    parties,    as    evi-  2 — Trenton,  etc.,  Co.  v.  Johnson, 

denced    by    the    language    of    the  (1854)  24  N.  J.  Law  576;  Scott  v. 

policy,    determines    for    what    ele-  Dickson,  (1884)  108  Pa.  6,  56  Am. 

ments     the     parties     intend     that  Rep.  192. 

compensation  shall  be  made.     The  3 — Braswell    v.    American    Life 

interpretation    of    technical    terms  Ins.  Co.,   (1876)   75  N.  Car.  8. 

having    a    particular    meaning    in  4 — Strauss    v.     Mutual    Reserve 

this  connection,  such  as  "perils  of  Fund  Life  Association,  (1900)   126 

the  sea,"  has  much  to  do  with  de-  N,   Car.   971,   36   S.   E.   352,  54  L. 

termining   the   extent   of   liability  R.  A.  605,  83  Am.  St.  Rep.  699. 


248  LAW  OF  DAMAGES 

when  the  age  or  health  of  the  insured  is  such  that  he  can- 
not procure  insurance  elsewhere.  In  such  a  case,  the 
measure  of  damages  is  the  amount  of  the  policy,  minus 
the  amount  of  all  premiums  to  be  paid  to  the  time  of 
maturity.^ 

132.  Fire  Insurance. — ^Unlike  life  insurance,  fire  insur- 
ance is,  in  its  usual  form,  a  mere  undertaking  to  indemnify 
against  loss  by  fire.  On  an  **open  policy,"  which  is  the 
usual  form  of  fire  insurance,  the  question  of  the  amount 
to  be  recovered  in  case  of  loss  is  left  open  and  depends 
upon  the  extent  of  the  loss,  within  a  limit  usually  set 
by  the  policy.  The  amount  recoverable  on  an  open  policy 
is  such  an  amount  as  will  compensate  the  insured  for  his 
actual  loss,  whether  it  be  partial  or  total,  limited  by  the 
amount  of  the  policy.^  On  a  ''valued  policy"  of  fire  or 
marine  insurance,  the  amount  recoverable  in  case  of  total 
loss  is  a  certain  liquidated  sum  agreed  upon  by  the  parties 
in  advance  as  being,  for  the  purposes  of  the  contract,  the 
value  of  the  property,  and  the  measure  of  recovery  is  in 
no  way  affected  by  the  fact  that  the  parties  have  agreed 
upon  an  excessive  valuation.'^  In  the  event  of  a  partial 
loss,  the  measure  of  recovery  on  an  open  policy  is,  as  in 

5 — Mutual    Eeserve    Fund    Asso-  he   is    entitled    only    to    that,    and 

elation   v.   Ferrenbach,    (1906)    144  the   actual   loss    sustained    by    the 

Fed.  342,  75  C.  C,  A.  304,  7  L.  E.  assured  is  the  measure  of  indem- 

A.   (N.  S.)    1163.     In  all  of  these  nity  to  which  he  is  entitled  where 

cases  the  measure  of  damages  va-  it  is  less  than  the  sum  insured.    So, 

ries  according  to  the  character  and  if  the  assured  has  parted  with  all 

features  of  the  policy. — Id.  his  interest  in  the  subject  insured 

6 — Fowler  v.  Old  North  State  In-  before  the  loss  happens,  he  cannort 

Buranee  Co.,  (1876)   74  N.  Car.  89;  recover,    for    the    reason    that    the 

Farmers'  Insurance  Co.  v.  Butler,  contract  is  regarded  as  one  for  an 

(1882)   38  O.  St.  128.  indemnity,    and    he    has    sustained 

"In  the  case  of  an  ordinary  pol-  no  loss  or  damage." — Sheldon,  J., 

icy   of  insurance,  and   a  loss,  the  in  Illinois   Mutual   Fire  Insurance 

sum  insured  is   the   extent  of  the  Co.  v.  Andes  Insurance  Co.,  (1873) 

insurer's    liability,    not    the    meas-  67  III.  362,  16  Am.  Eep.  620. 
ure  of   the   assured 's   claim.     The  7 — See  Portsmouth  Insurance  Co, 

contract   being  one   of  indemnity,  v.  Brazee,   (1847)   16  Ohio  82. 


INSURANCE  249 

the  case  of  a  total  loss,  the  amount  of  the  actual  loss,  not 
exceeding  the  amount  of  the  policy ;  ^  and  the  measure 
of  recovery,  in  such  a  case,  on  a  valued  policy,  is  accord- 
ing to  the  proportion  which  the  loss  bears  to  the  whole 
property  insured.^ 

133.  Insurability  of  Interest. — The  well  known  modem 
policy  of  the  law  is  against  wager  contracts,  and  their 
validity  is  denied.  Formerly,  it  was  possible  for  A  to 
effect  insurance  on  the  life  of  B,  in  the  continuance  of 
whose  life  he  had  no  interest  whatever.  Such  insurance, 
popularly  known  as  "graveyard  insurance,"  can  be  no 
more  than  a  wager,  in  which  A  *  *  puts  up ' '  the  premiums 
on  a  bet  that  B  will  die  soon  enough  to  enable  him  to 
realize  a  profit  by  the  payment  to  him  of  the  amount  of 
the  policy,  against  which  the  insurance  company  stakes 
its  liability  to  pay  such  amount  in  the  event  of  the  death 
of  B.  An  insurance  contract  of  this  kind,  besides  being 
a  wager,  encourages  A  to  murder  B  in  order  to  win 
the  amount  of  the  policy.  Such  a  contract  is  illegal  and 
unenforceable.^'*     The  same  is  true  of  a  fire  or  marine 

8 — Liseom  v.  Boston  Mutual  Fire  5  L.  E,  A,  95;   Dolan  v.  Supreme 

Insurance     Co.,     (1845)     9     Mete.  Council,  (1908)   152  Mich.  266,  116 

(Mass.)   205;  Underbill  v.  Agawan  N.   W.   383,    16   L.   R,   A.    (N.    S.) 

Mutual  Fire  Insurance  Co.,  (1850)  555,  15  Ann,   Cas.  232;   Loeher  v. 

6   Cush.    (Mass.)    440.  Kuechenmiester,     (1906)     120    Mo. 

9— Natchez     Insurance     Co.     v.  App.    701,   98   S.   W.   92;    Reed   v. 

Buckner,    (1839)    4    How.    (Miss.)  Provident  Life  Assurance  Society, 

63.  (1907)    190    N.    Y,    111,    82    N,   E. 

10 — However,    in    general,    any  734;    Mutual    Benefit    Life    Insur- 

person  may  take  insurance  on  his  ance   Co.   v.    Cummings,    (1913)    66 

own   life   in   favor   of   any   person  Ore.  272,  133  Pac.  1169,  47  L.  R. 

that  he  may  wish  to  name;  for  he  A.   (N.  S.)   252;  Brett  v.  Warnick, 

has    an    insurable    interest    in    his  (1904)    44  Ore.  511,   75  Pac,   1061, 

own  life.— Langdon  v.  Union  Mu-  102  Am.  St.  Rep.  639;  Hill  v.  Unit- 

tual  Life  Insurance  Co.,  (1882)   14  ed     Life     Insurance     Association, 

Fed.  272;  Union  Fraternal  League  (1893)   154  Pa.  29,  25  Atl.  771,  35 

v.    Walton,    (1899)    109   Ga,    1,   34  Am.  St.  Rep.  807. 

S.  E.  317,  46  L.  R.  A.  424,  77  Am.  But    statutes    sometimes    forbid 

St,   Rep.   350;    Milner   v.   Bowman,  the    issuance    of   life    insurance   in 

(1889)  119  Ind.  448,  21  N,  E.  1094,  favor  of  a  beneficiary  not  interest- 


250  LAW  OF  DAMAGES 

insurance  policy  in  which  the  parties  have  agreed  upon 
a  clearly  and  grossly  excessive  valuation  of  the  property 
of  the  insured  in  order  to  cover  what  is  in  fact  a  mere 
wager ;  and  it  is  true  also  of  a  policy  on  property  in  which 
no  interest  is  owned  by  the  insured.  The  purpose  of  fire 
and  marine  insurance  is  indemnity,  and  a  person  cannot 
be  indemnified  against  a  loss  which  he  cannot  possibly 
sustain,  as  he  would  be  if  he  were  permitted  to  enforce 
insurance  taken  out  on  property  in  which  he  has  no  in- 
terest. If  fire  and  marine  insurance  were  permitted  to  be 
taken  out  on  property  in  which  the  insured  has  no  in- 
terest, not  only  would  a  mere  wager  thus  be  permitted, 
but  the  insured  would  be  tempted  to  burn  the  property 
or  plot  to  destroy  it  at  sea.  One  of  the  most  troublesome 
cases  of  insurability  is  that  in  which  the  mortgagee  of 
realty  takes  out  fire  insurance  thereon  in  order  to  pro- 
tect his  interest  in  the  property.  It  would  seem  that, 
on  principle,  he  could  not  recover  and  retain  more  than 
the  value  of  his  interest  in  the  property;  and  the  usual 
rule  is,  that  if  the  mortgagee  has  taken  insurance  on 
the  property  to  an  amount  greater  than  the  value  of  his 
interest  therein,  he  may  recover  for  the  entire  loss,  as 
if  the  whole  property  were  his,  but  that  he  must  pay  to 
the  mortgagor  any  surplus  over  and  above  his  own  in- 
terest." One  court,  however,  lays  down  a  different  rule, 
permitting  the  mortgagee  to  recover  for  the  entire  loss 
and  to  retain  the  whole  sum  himself,  without  any  obliga- 
tion on  his  part  to  pay  the  surplus  over  the  value  of  his 
interest  to  the  mortgagor  or  to  permit  the  insurance  com- 
pany to  be  subrogated  to  his  rights  in  the  property.^- 
Such  a  rule  brings  a  very  strange  result,  permitting,  as 
it  does,  the  recovery  by  the  mortgagee  on  the  insurance 

ed  in  the  life  of  the  insured.     See  11  —  Carpenter     v.     Providence 

Morgan  v.  Segenfelter,  (1907)   127  Washington  Insurance  Co.,    (1842) 

Ky.  348,  32  Ky.  Law  225,  105  S.  16  Pet.  (U.  S.)  495,  10  L.  ed.  1044. 

W.  476,  14  L.  R.  A.   (N.  S.)  1172,  12— King    v.    State,    etc.,    Insur- 

128  Am.  St.  Rep.  343.  anee  Co.,  (1851)  7  Cush.  (Mass.)  1. 


INSURANCE  251 

policy  and  also  on  the  mortgage  indebtedness,  thus  giv- 
ing the  mortgagee,  in  many  instances,  twice  the  amount 
of  the  secured  indebtedness,  besides  compensation  for 
loss  in  the  value  of  the  equity  of  redemption.  The  mort- 
gagor may  effect  insurance  on  his  equity  of  redemption, 
which  is  the  extent  of  his  interest  in  the  property ;  or  he 
may,  as  he  often  contracts  with  the  mortgagee  to  do,  take 
insurance  on  the  whole  property,  principally  for  the  bene- 
fit of  the  mortgagee.  In  the  latter  case,  the  mortgagee 
has  a  right  to  enough  of  the  sum  paid  for  the  loss  to 
pay  the  debt  secured,  and  the  mortgagor  retains  the  sur- 
plus, if  there  be  any.^* 

CASE   ILLUSTRATIONS 

1.  A  has  his  life  insured  in  favor  of  B,  a  woman  with  whom 
he  is  illegally  cohabiting  and  with  whom  he  has  gone  through 
no  form  of  marriage.  Held,  that  B  could  collect  the  amount  of 
the  policy.^* 

2.  Fire  insurance  was  carried  on  bar  fixtures.  The  policy 
provided  that  "the  company  shall  not  be  liable  beyond  the  ac- 
tual cash  value  at  the  time  any  loss  or  damage  occurs."  Be- 
tween the  date  of  the  insurance  and  the  loss  by  fire,  the  sale  of 
liquor  had  been  prohibited  in  the  state,  so  that  there  was  no 
longer  a  fair  cash  value  for  such  fixtures  at  their  location.  Held 
that  the  value  of  such  movable  property  **  should  be  ascertained 
at  the  nearest  fair  market  for  the  same,  subject  to  a  deduction 
for  the  cost  of  transporting  the  property,  if  found  necessary  and 
advisable  to  remove  it.  *  *  *  There  would  seem  to  be  no 
just  reason  why  the  value  of  personal  property  insured  should 

13 — Cone  v.  Niagara  Fire  Insur-  policy.     According   to   the  weight 

ance  Co.,  (1875)  60  N.  Y.  619;  Ker-  of   authority,   it   would   seem   that 

nochan  v.  New  York  Bowery  Fire  there  was  excellent  ground  for  this 

Insurance  Co.,  (1858)  17  N,  Y,  428.  dissent.    Where  the  beneficiary  has 

14 — Mutual   Benefit    Life    Insur-  knowingly  lived  illegally  with   in- 

ance   Co.   v.   Cummings,    (1913)    66  sured,  it  is  usually  held  that  she 

Ore.  272,  133  Pac.   1169,  47  L.  E.  cannot    recover    as    beneficiary    of 

A.    (N.   S.)    252,  McBride,  J.,  dis-  his  policy  of  life  insurance.     See 

senting  on  the  ground  that  such  a  cases  collected  in  47  L.  E.  A.  (N. 

holding   would    be    against    public  S.)   252  note. 


252  LAW  OF  DAMAGES 

be  ascertained  at  a  place  where  from  local  causes  or  peculiar 
conditions  it  had  become  greatly  depreciated,  when  by  its  re- 
moval, if  of  a  kind  safely  removable,  to  a  reasonably  convenient 
market,  its  fair  value  could  be  procured."  ^^ 

3.  In  a  state  wherein  a  husband  had  a  freehold  estate  in  his 
wife's  property,  plaintiff  and  his  wife  secured  a  fire  insurance 
policy  on  a  stock  of  goods  belonging  to  the  wife.  Held,  that 
the  husband  had  an  insurable  interest.^® 

15 — Prussian  National  Insurance  16 — Gleason   v.   Prudential   Fire 

Co.  V.  Lawrence,  (1915)  221  Fed.  Ins.  Co.,  (1912)  127  Tenn.  8,  151 
931,  L.  E.  A.  1915  E  489.  S.  W.  1030. 


CHAPTER  XXXIII 
Indemnity 

134.  In  General. — One  party  enters  into  a  contract  to 
indemnify  anotlier  against  a  certain  possible  loss  or  a  lia- 
bility to  pay  or  assume  a  certain  debt  which  the  other 
is  to  incur.  The  measure  of  damages  for  breach  of  such 
a  contract  is  the  amount  of  such  loss,  liability,  or  debt, 
together  with  compensation  for  such  other  losses  as  occur 
as  natural  and  probable  results  of  the  breach,  such  as  ex- 
penses and  costs.^  The  fact  of  actual  loss  is  essential 
to  the  maintenance  of  an  action  on  a  contract  to  in- 
demnify against  actual  loss,  damage  being  the  gist  of 
the  action.^ 

135.  Kinds  of  Indemnity  Contracts,  and  the  Maturity 
of  Rights  Thereunder. — In  a  case  wherein  one  party  has 
contracted  to  indemnify  the  other  party  not  only  against 
actual  loss,  but  against  liability,  the  payment  of  the 
amount  of  the  liability  by  the  other  party  is  not  a  pre- 
requisite to  the  right  of  the  other  party  to  maintain  his 
action  for  breach  of  the  contract ;  for  it  is  sufficient  that 
the  mere  liability  is,  in  itself,  the  kind  of  event  indemni- 
fied against.^ 

Where  one  binds  oneself  to  save  another  from  financial 
damage,  it  is,  according  to  the  usual  view,  unnecessary 

1— Wetmore  v.  Green,  (1831)   11  3— Furnas  v,  Durgin,  (1876)   119 

Pick,    (Mass.)   462.  Mass.  500,  20  Am.  Eep.  341;  Val- 

2— Kennedy  v.  Fidelity  &  Casu-  entine     v.     Wheeler,     (1877)      122 

alty  Co.,   (1907)    100  Minn.  1,  110  Mass.  566,  23  Am.  Rep.  404;  Bolles 

N.  W.  97,  9  L.  E.  A.  (N.  S.)  478,  v.  Beach,  (1850)  22  N.  J.  Law  680, 

117   Am.   St.   Rep.    658;    Chace   v.  53  Am.  Dec.  263. 
Hinman,   (1832)    8  Wend.   (N.  Y.) 
452,  24  Am.  Dee.  39. 


254  LAW  OF  DAMAGES 

that  the  obligee  shall  have  paid  the  obligation  in  cash 
before  he  can  recover  the  amount  thereof  of  the  obligor, 
it  being  sufficient  if  he  has  given  a  promissor^^  note  or 
other  negotiable  paper  in  settlement  of  the  claim.  So, 
where  the  defendant  has  issued  to  the  plaintiff  a  policy  of 
indemnitj'^  against  **loss  from  the  liability  imposed  by 
law  upon  the  assured  from  damages  on  account  of  bodily 
injuries  or  death  accidentally  suffered  while  this  policy  is 
in  force,  by  an  employee  or  employees  of  the  assured," 
and  an  employee  is  killed,  and  his  administrator  brings 
action  against  the  plaintiff,  procuring  a  judgment,  and 
plaintiff  borrows  money  to  pay  the  judgment  and  actually 
pays  it,  the  plaintiff  is  entitled  to  recover  against  the  de- 
fendant, whether  the  plaintiff  has  paid  back  the  borrowed 
money  or  not,  as  the  loss  to  the  plaintiff  has  already  be- 
come complete,  regardless  of  the  question  how  he  got  the 
money  with  which  to  pay.*  So,  where  a  grantee  in  a  deed 
agrees  to  pay  the  amount  of  a  mortgage  as  part  of  the 
consideration  and  fails  to  do  so,  and  the  grantor  is  obliged 
to  discharge  the  mortgage,  which  he  does  by  giving  new 
security,  the  grantor  is  entitled  to  be  indemnified  in  the 
full  amount  of  the  mortgage.*^  Likewise,  where  the 
obligee  has  given  his  note  in  direct  payment  of  a  judg- 
ment which  the  obligor  has  indemnified  him  against,  the 
liability  of  the  obligor  is  fixed.^  Pajment  by  negotiable 
paper  is  considered  as  being  actual  payment  within  the 
meaning  of  an  indemnity  contract.'^  Damages  in  excess 
of  the  actual  loss  to  plaintiff  are  not  recoverable.® 

4— West    Riverside    Coal    Co.    v.  A.   (N.  S.)   121,  126  Am.  St.  Bep. 

Maryland  Casualty  Co.,  (1912)  151  886.    See  L.  R,  A.  note  to  same. 

la.  161,  135  N.  W.  414,  48  L.  R.  A.  7— Ralston    v.   Wood,    (1853)    15 

(N.  S.)  195.     See  L.  R.  A.  note  on  111.  159,  58  Am.  Dec.  604;  Pasewalk 

this  case.  v.  Bollman,  (1890)  29  Neb.  519,  45 

5— Bolles  V.  Beach,  (1850)  22  N.  N.  W.  780,  26  Am.  St.  Rep.  399. 

J.  Law  680,  53  Am.  Dee.  263.  8— Valentine  v.  Wheeler,  (1877) 

6— Seattle  &  S.  F.  Ry.,  etc.,  Co.  122  Mass.  566.  23  Am.  R«p.  404. 
V.  Maryland  Casualty  Co.,   (1908) 
50  Wash.  44,  96  Pac.  509,  18  L.  R. 


INDEMNITY  255 

CASE   ILLUSTRATIONS 

1.  A  mortgages  land  to  B,  giving  a  bond  that  he  will  dis- 
charge all  incumbrances.  B  enters  to  foreclose,  but  is  evicted  by 
a  prior  mortgagee.  Held,  that  B  can  recover  the  amount  of 
prior  mortgagee's  judgment  and  costs,  with  interest.^ 

2.  An  execution  creditor  agrees  to  indemnify  a  purchaser 
against  loss.  Held  that,  where  a  purchaser  later  has  to  defend 
title,  he  may  recover  from  the  execution  creditor  the  cost  of 
such  defense.^'* 

3.  A  agrees  to  indemnify  and  save  B  harmless  against  his 
liability  as  maker  of  a  certain  note  for  $500  and  to  pay  certain 
notes  already  due.  A  breaks  his  contract.  B  can  recover  the 
amount  of  the  note  and  interest  thereon,  although  he  has  not 
yet  paid  the  note.  Costs,  however,  could  not  be  recovered  un- 
less actually  paid.^^ 

4.  A  contracts  to  indemnify  the  sureties  on  his  bond  as  post- 
master against  all  damages,  costs,  and  charges  which  they  might 
incur  on  account  of  their  liability.  Held,  that  the  sureties,  in 
order  to  recover  against  their  principal,  were  bound  to  prove 
actual  damage.  "Although  a  judgment  had  been  recovered 
against  them,  there  was  no  evidence  that  they  had  paid  any- 
thing, or  that  they  were  put  to  any  expense  in  defending  the 
suit.  "12 

9— Wetmore  v.  Green,  (1831)  11  11— Churchill  v.  Hunt,   (1846)   3 

Pick.    (Mass.)    462.  Denio  (N.  Y.)  321. 

10 — Cassidy   v.   Taylor,   etc.,  Co.  12 — Jeffers    v.    Johnson,    (1847) 

(1903)  79  N.  Y.  S.  595,  79  App.  Div.  21  N.  J.  Law  73. 
242. 


CHAPTER  XXXIV 

Agency 

136.  In  General. — The  rules  governing  the  measure  of 
damages  for  the  breach  of  a  contract  in  which  agency  is 
involved,  are  not,  in  the  principal  features,  different  from 
the  general  rules  of  the  law  of  contracts.  The  intention 
of  the  contracting  parties  governs.  The  seemingly  un- 
usual and  far-reaching  rules  governing  the  conduct  of  the 
agent  because  of  the  fiduciary  character  of  his  work,  are 
simply  in  line  with  what  the  parties  to  a  contract  of 
agency  would  express  if  they  made  express  statement  of 
all  the  stipulations  they  really  intend.  The  fiduciary  na- 
ture of  the  relation  is  implied,  together  with  all  of  the 
propositions  corollary  to  it. 

137.  Liability  of  Agent  to  Principal. — An  agent  is  act- 
ing for  his  principal,  and  not  for  himself.  Good  faith  and 
honest  dealing  require  that  he  pay  over  to  his  principal 
all  profits  made  by  him  in  the  course  of  the  business 
transacted  by  him  for  his  principal.  If  an  agent  secretly 
makes  profits  on  his  principal's  transaction,  the  principal 
may  sue  the  agent  and  recover  all  such  profits.* 

An  agent  must  show  reasonable  care,  skill,  and  judg- 
ment, in  the  exercise  of  his  duties  for  his  principal,  and  is 
liable  in  damages  for  a  failure  in  this  regard.^    He  must 

1— McKinley  v.  Williams,  (1896)  32  N.  W.  785,  5  Am.  St.  Rep.  808; 

74  Fed.  94,  20  C.  C.  A.  312;  Gower  Crump  v.  Ingersoll,  (1890)  14  Minn. 

V.   Andrew,    (1881)    59    Calif.    119,  84,  46  N.  W.  141;  Bent  v.  Priest, 

43  Am.  Rep.  242;  Davis  v.  Hamlin,  (1886)  86  Mo.  475;  Jansen  v.  Wil- 

(1883)    108    HI.    39,   48    Am.    Rep.  liama,    (1893)    36  Neb.   869,  55  N. 

541;  Bassett  v.  Rogers,  (1894)  162  W,  279,  20  L.  R.  A.  207. 
Mass.    47,    37   N.    E.    772;    Hegen-  2— Whitney    v,    Abbott,    (1906) 

myer  v.  Marks,  (1887)  37  Minn.  6,  191   Mass.  59,  77  N.  E.  524;  We- 

256 


AGENCY  257 

not  violate  the  express  or  implied  conditions  of  his  con- 
tract of  agency,  and  is  liable  to  his  principal  for  any  such 
violation.^ 

Where  an  attorney  breaks  his  contract  with  his  client 
by  settling  a  claim  in  favor  of  the  client  at  a  less  sum 
than  that  at  which  he  is  authorized  to  settle,  the  attorney's 
liability  does  not  necessarily  extend  to  the  total  differ- 
ence between  the  amount  he  has  actually  collected  and 
paid  to  his  client  and  the  amount  originally  claimed  by  the 
client;  for  the  true  measure  of  damages  here,  as  else- 
where, is  the  amount  of  loss  actually  sustained  by  the 
plaintiff,  which  would  here  be  the  difference  between  the 
amount  actually  collected  and  paid  over  to  the  client  and 
the  amount  which  the  client  would,  with  reasonable  cer- 
tainty, have  been  able  to  collect  but  for  the  wrongful  act 
of  the  attorney.^ 

If  the  agent  wilfully  neglects  to  keep  true  accounts  of 
the  business  transacted  for  his  principal  or  fails  to  ren- 
der accounts,  he  forfeits  his  right  to  compensation.^ 

If  an  agent  causes  his  principal  a  loss  by  doing  things 
beyond  his  actual  authority  and  at  the  same  time  within 
his  apparent  authority,  so  that  his  master  is  bound  by 
his  acts,  he  is  liable  to  his  principal  for  all  losses  proxi- 
mately resulting  from  the  wrong.^ 

An  agent  is  liable  to  his  principal  for  all  losses  proxi- 
mately resulting  from  his  negligence.'' 

leetka  Light  &  Water  Co.  v.  Burle-  260,  34  L.  R.  A.  (N.  S.)  1046;  We- 

8on,  (1914)  42  Okla.  748,  142  Pae.  leetka  Light  &  Water  Co.  v.  Burle- 

1029.  son,  (1914)  42  Okla.  748,  142  Pae. 

3— Ashley  v.  Eoot,  (1862)  4  Al-  1029. 

len  (Mass.)  504.  6— Bell  v.  Cunningham,  (1830)  3 

4— Vooth    y.    MeEachen,    (1905)  Pet.  (U.  S.)  69,  7  L.  ed.  606;  Bird- 

181  N.  Y.  28,  73  N.  E.  488,  2  Ann.  sell  Mfg.  Co.  v.  Brown,  (1893)  96 

Cas.  601.  Mich.  213,  55  N.  W.  801. 

5— Sipley  v.  Stickney,  (1906)  190  7— Plumb    v.    Campbell,    (1888) 

Mass.  43,  76  N.  E.  226,  5  L.  E.  A.  129  111.   101,  18   N.  E.   790;    Allen 

(N.  S.)  469,  112  Am.  St.  Rep.  309,  v.   Suydam,    (1838)    20   Wend.    (N. 

5  Ann.  Cas.  611;  Little  v.  Phipps,  Y.)    321,  32  Am.  Dec.  555;   Mead- 

(1911)    208   Mass.   331,  94   N.   E.  ville  First  National  Bank  v.  New 
Bauer  Dam. — 17 


258  LAW  OF  DAIilAGES 

138.  Liability  of  Principal  to  Agent. — The  principal 
must  of  course  pay  his  agent  the  commission  or  other 
compensation  agreed  upon,  when  the  agent  has  done  that 
which  he  has  agreed  to  do.^  If  an  agent  ignores  his 
obligation  to  his  principal,  pocketing  secret  profits  on  a 
transaction  for  his  principal,  or  if  he  materially  violates 
his  contract  of  agency,  he  cannot  collect  a  commission 
for  his  services  in  bringing  about  the  transaction.^ 

The  principal  must  reimburse  his  agent  for  his  reason- 
able and  necessary  expenditures  made  within  the  scope  of 
his  authority,  in  the  performance  of  his  task,  as  these 
are  within  the  contemplation  of  the  parties  at  the  time 
of  entering  into  the  contract,  unless  otherwise  stipu- 
lated.i« 

In  accordance  with  a  usage  among  factors  and  their 
principals,  a  factor  may  sell  at  the  best  price  obtainable 
property  purchased  by  him  for  his  principal  and  charge 
the  loss  to  his  principal.^  ^ 

If  the  principal  wrongfully  terminates  the  agency  by 
discharging  the  agent,  the  case  is  governed  by  the  gen- 
eral rules  determining  the  measure  of  damages  for  breach 
of  contract.  ^^ 

139.  Liability  of  Agent  to  Third.  Person. — Where  an 
agent  does  not  exceed  his  authority  or  undertake  any 

York  Fourth  National  Bank,  (1879)  "The  agent's  right  to  be  repaid 

77  N.  Y.  320,  33  Am.  Eep.  618.  moneys   he    has   expended    for   his 

8 — United    States   Mortgage    Co.  principal  pursuant  to  his  authority 

V.  Henderson,   (1886)    111  Ind.  24,  rests   upon    a   clear   legal   ground; 

12    N.    E.    88;    Mangum    v.    Ball,  they  are  paid  at  the  principal's  re- 

(1870)    43   Miss.   288,   5  Am.  Eep.  quest  and  the  law  implies  a  duty 

488.  and    promise    to    refund. ' ' — Suth. 

9— Jansen  v.  Williams,  (1893)  36  Dam.  (4th  Ed.)   §  789. 

Neb.  869,  55  N.  W.  279,  20  L.  R.  A.  11— Suth.  Dam.    (4th  ed.)    §  790, 

207.  citing  Couturie   v.   Eoensch,    (Tex. 

10  —  Rosenstock       v.       Tormey,  Civ.  App.  1911)   134  S.  W,  413. 

(186?)    32    Md.    169,    3    Am.    Rep.  12—2   C.  J.   791;    Richardson   v. 

125:  Beckwith  v.  Sibley,  (1831)  11  Eagle    Machine   Works,    (18S1)    78 

Pick.    (Mass.)    482.  Ind.  422,  41  Am.  Eep.  584;   Hunt 


AGENCY  259 

acts  for  himself  in  connection  with  his  principal's  busi- 
ness, questions  as  to  liability  of  the  agent  to  third  per- 
sons seldom  arise.  But  if  the  agent  exceed  his  authority 
and  make  a  contract  unauthorized  by  his  principal,  a  dif- 
ferent situation  arises.  The  third  person  has  dealt  with 
the  agent  upon  the  implied  agreement  that  the  agent  is 
authorized  to  do  the  act  which  he  undertakes  to  do.  There 
is,  on  the  part  of  the  agent,  an  implied  warranty  that  he 
has  such  authority,  and  he  is  liable  on  such  warranty  for 
all  losses  accruing  as  natural  and  probable  results  of  the 
breach,  and  is,  on  principle,  not  liable  on  the  contract 
he  has  made  ostensibly  for  a  principal.^ ^  A  less  satisfac- 
tory and  less  logical  holding,  found  in  a  few  states,  is  to 
the  effect  that  the  agent  who  makes  an  unauthorized  con- 
tract is  liable  upon  it  as  principal.**  This  is  utterly  il- 
logical, substituting  a  new  contract  for  the  one  made  by 
parties.  It  may  even  happen  that  a  contract  with  the 
principal  would  have  been  of  no  value,  because  of  his  in- 
solvency, perhaps  unknown  at  the  time  of  the  making  of 
th^  contract,  and  that  a  similar  contract  with  the  agent 
would  be  highly  valuable.  In  such  a  case,  under  this 
anomalous  rule,  the  third  person  would  receive  not  merely 
what  he  had  lost  by  reason  of  the  breach  of  warranty, 
but  a  right  of  much  more  financial  value. 

CASE   ILLUSTRATIONS 

1.  Plaintiff  agrees  to  convey  to  the  order  of  defendant,   a 
broker,  certain  property  at  a  certain  price,  and  to  pay  a  cer- 

V.  Crane,   (1857)   33  Miss.  669,  69  N.  E.  110,  12  L.  K.  A.  346,  21  Am. 

Am.  Dec.  381;   Ream  v.  Watkins,  St.  Eep.  846;  Haupt  v.  Vint,  (1911) 

(1858),  27  Mo.   516,   72  Am.  Dec.  68  W.  Va.  657,  70  S.  E.  702,  34  L. 

283;  King  v.  Steiren,  (1862)  44  Pa.  R.  A.  (N.  S.)  518. 
St.  99,  84  Am.  Dec.  419.  14 — So  held  in  Alabama,  Indiana, 

13 — Jefts  V.  York,  (1849)  4  Cush.  Louisiana,     South     Carolina,     and 

(Masat)    371,    50    Am.    Dec.    791;  Vermont.    See  Gillaspie  v.  Wesson, 

Bartlett     v.     Tucker,     (1870)     104  (1838)   7  Port.  (Ala.)  454,  31  Am. 

Mass.  336,  6  Am.  Rep.  240;  Farm-  Dec.  715;  and  cases  cited  in  2  C. 
ers'     Co-operative     Trust     Co.     v.  808. 

Floyd,    (1890)    47    0.    St.    525,    26 


260  LAW  OF  DAMAGES 

tain  commission  upon  defendant's  selling  it.  Defendant  suc- 
ceeds in  getting  a  much  larger  amount  for  the  property  and 
keeps  the  difference.  Held,  that  defendant  must  pay  over  to 
plaintiff  the  entire  sum  collected  as  purchase  money .^^ 

2.  A  makes  a  conditional  sale  of  a  gasoline  engine  to  B,  with 
the  provision  that  title  shall  not  pass  until  the  purchase  money 
has  been  paid  in  full.  B  receives  the  engine,  but  refuses  to 
sign  the  contract.  A  employs  C,  an  attorney  at  law,  and  in- 
structs him  to  get  B  to  sign  the  contract,  or  to  take  such  legal 
action  as  C  may  deem  proper,  but  not,  under  any  circumstances, 
to  do  anything  that  will  lose  A's  title  to  the  engine.  C  negli- 
gently brings  an  action  against  B  for  the  price  of  the  engine, 
thus  electing  to  pass  title  to  B,  whereby  A  loses  title.  Held, 
that  A  can  maintain  an  action  against  C,  and  that  his  measure 
of  damages  is  the  market  value  of  the  engine. ^^ 

3.  A,  principal,  directs  B,  his  agent,  to  foreclose  a  certain 
mortgage  and  to  purchase  the  mortgaged  goods  at  the  foreclos- 
ure sale,  unless  other  parties  should  bid  $250.  B  permitted  the 
goods  to  sell  for  $12.  Held,  that  A  can  recover  of  B  the  dif- 
ference between  the  fair  cash  value  of  the  goods  and  the  price 
for  which  they  sold.^''' 

4.  A,  agent,  in  accordance  with  authority  given  him  by  B,  his 
principal,  buys  insurance  on  B's  property,  and  pays  the  pre- 
mium.   A  can  recover  the  amount  of  the  premium  from  B.^^ 

15— Bassett  v.  Kagers,  (1894)  162  18 — Eochester  v.  Levering,  (1886) 

Mass.  47,  37  N.  E.  772.  104  Ind.  562,  4  N.  E.   203,  which 

16 — "Whitney   v.   Abbott,    (1906)  holds   that    this    is   true,   although 

191  Mass.  59,  77  N.  E.  524.  the  policy  is  voidable  because  A  is 

17 — Dazey  v.  Roleau,  (1903)  111  agent  of  the  insurance  company. 
lU.  App.  367. 


CHAPTER  XXXV 

Partnership 

140.  Breach  of  Partnership  Articles  by  Refusal  to 
Begin  Business  or  by  Wrongful  Dissolution. — Where  one 
party  contracts  to  form  a  partnership  to  engage  in  a  cer- 
tain business  for  a  definite  period,  and  breaks  the  agree- 
ment by  refusing  to  permit  the  business  to  be  launched 
or  by  wrongful  dissolution  after  business  has  been  begun, 
the  measure  of  damages  includes  loss  of  profits  that  would 
have  been  earned  during  such  period.  Loss  of  profits  is 
a  damage  contemplated  by  the  parties  and  resulting 
proximately  from  the  breach,  and  recovery  for  such  loss 
is  always  possible  when  it  is  practicable  to  prove  profits 
with  reasonable  certainty.^  For  the  purpose  of  proving 
prospective  profits,  evidence  of  past  profits  is  admissible.^ 
Likewise,  the  business  condition  and  growth  of  the  com- 
munity in  which  the  business  is  located  may  be  shown 
and  the  plaintiff's  ability  and  skill,  as  bearing  upon  the 
amount  of  prospective  profits.^ 

Expenditures  incurred  by  the  plaintiff,  in  good  faith, 
for  the  benefit  of  the  partnership,  may  be  recovered  on 
special  pleading  and  proof.  If  the  defendant,  at  the  time 
of  a  wrongful  dissolution,  owes  his  partner,  the  plaintiff, 
a  certain  sum,  this  may  be  recovered  with  interest  from 
the  time  of  such  breach.^ 

Where  one  partner  has  paid  the  other  a  premium,  on 
agreement  that  the  partnership  is  to  last  for  five  years, 

1— Bagley   v.    Smith,    (1853)    10  ing  Eamsay   v.   Meade,    (1906)    37 

N.  Y.  489,  61  Am.  Dec.  756.  Colo.  465,  86  Pac.  1018. 

2_Bagley  v.   Smith,  supra.  4— See  Hill  v.  Palmer,  (1882)  56 

3— Suth.  Dam.,  4th  ed.,  §  68,  cit-  Wis.  123,  14  N.  W.  20. 

361 


262  LAW  OF  DAMAGES 

and  the  other  wrongfully  dissolves  the  partnership  at  the 
end  of  one  year,  it  is  held  that  four-fifths  of  the  premium 
must  be  returned.^  It  would  seem  more  in  accord  with 
general  rules  of  the  law  of  damages  to  say  that  the 
wronged  partner  is  entitled  to  be  reimbursed  for  his 
actual  loss  caused  by  the  dissolution,  which  amounts  to 
the  value  of  the  partnership  to  him.^ 

141.  Liquidation  of  Damages  for  Dissolution. — It  is 
manifestly  impossible  to  calculate  with  any  accuracy  the 
amount  of  damage  suffered  by  one  partner  as  a  result  of 
wrongful  dissolution  of  the  partnership  by  another  party. 
For  this  reason,  it  is  proper  for  the  parties  to  a  partner- 
ship agreement  to  fix  liquidated  damages  for  wrongful 
dissolution.'^ 

142.  Transactions  Concealed  by  One  Partner  from  An- 
other.— Where  one  partner  conceals  from  another  the 
fact  that  he  is  offered  a  large  sum  for  the  partnership 
property,  and  induces  the  other  partner  to  accept  less 
than  his  share  of  the  proceeds,  the  other  has  a  right  not 
simply  to  his  share  of  the  actual  value  of  the  property, 
but  to  his  share  of  the  amount  actually  received.  The 
partners  are  in  a  relation  of  mutual  confidence,  and  the 
concealment  of  relevant  facts  in  such  a  case  is  f raud.^ 

CASE   ILLUSTRATIONS 

1.  A,  B,  and  C  entered  into  a  partnership  agreement  to  do 
business  as  a  firm  for  four  years  and  one  month.  A  and  B, 
while  C  was  traveling  on  business  of  the  firm,  wrongfully  dis- 
solved the  partnership  and  formed  a  new  firm  of  their  own. 
Held,  that  C  can  recover  of  A  and  B  future  profits,  and  that, 

5 — Corcoran  v.  Sumption,  (1900)  7 — ^Yatsuyanagi    v.    Shimamura,    '    / 

79   Minn.    108,    81    N.   W.    761,    79  (1910)   59  Wash.  24,  109  Pac.  282.  ^ 

Am.  St.  Ecp.  428.  8— Finn    v.    Young,     (1908)     50 

6— McCollum  V.  Carlucci,   (1903)  Wash.  543,  97  Pac.  739.                ^ 
206  Pa.  312,  55  Atl.  979,  98  Am.  St. 
Rep.  780. 


PARTNERSHIP  263 

for  the  purpose  of  estimating  such  profits,  evidence  of  past  profits 
of  the  firm  is  admissible.^ 

2.  A  fraudulently  obtained  the  consent  of  B,  his  partner,  to 
the  sale  of  their  business,  having  falsely  represented  that  the 
price  to  be  received  was  $21,000,  when  actually  it  was  $35,000. 
A  then  paid  B,  as  his  portion  of  the  proceeds,  only  $10,500. 
Held,  that  B  has  a  right  to  his  one-half  share  in  the  proceeds,  or 
$17,500,  and  that  he  can  recover  of  A  $7,000.io 

9— Bagley    v.    Smith,    (1853)    10  10— Finn    v.    Young,    (1908)    50 

N.  Y.  489,  61  Am.  Dec.  756.  Wash.  543,  97  Pac.  741.  v^' 


CHAPTER  XXXVI 

Carrieks 

141.  Introductory. — The  liability  of  a  common  carrier, 
independently  of  contract,  is  grounded  in  his  common 
law  duty.  For  this  reason,  where  a  common  carrier  com- 
mits a  wrong  which  is  a  violation  of  his  contract  of  car 
riage  and  at  the  same  time  a  violation  of  his  common  law 
duty,  he  may  be  sued  in  either  contract  or  tort.  On  sound 
principle,  the  mere  form  of  the  action  will  not  make  any 
difference  as  to  the  measure  of  damages.  Substance  and 
the  nature  of  the  plaintiff's  right,  and  not  the  form  of 
action  elected,  determine  the  measure  of  damages.  As 
there  is  a  contract  relation  between  carrier  and  shipper  or 
passenger,  the  question  of  the  naturalness  and  proba- 
bility of  injurious  results  accruing  from  a  breach  of  the 
contract,  is  pertinent ;  and  the  question  whether  the  loss 
is  a  proximate  result  of  the  defendant's  wrong,  must  be 
settled,  as  in  any  other  case.  Some  injurious  results  of 
the  carrier's  breach  of  common  law  duty  or  of  contract 
cannot  be  recovered  for,  because  they  were  not  within  the 
contemplation  of  the  parties  at  the  time  of  making  the 
contract. 

Questions  as  to  the  contemplation  of  the  parties,  appear 
in  cases  of  carriers  of  goods,  almost  to  the  exclusion  of 
questions  of  proximity,  making  these  cases  resemble 
closely  cases  of  ordinary  contract,  especially  cases  of 
sales.  The  common  law  liability  of  the  carrier  for  loss 
of  or  damage  to  goods  carried,  is  absolute,  with  two  ex- 
ceptions: first,  losses  occasioned  by  the  act  of  God;  and, 
second,  those  caused  by  the  act  of  the  public  enemy.  In 
determining  the  extent  of  the  carrier's  liability  in  a  par- 

264 


CARRIERS  265 

ticular  case,  we  must  have,  as  a  preliminary,  always  to 
decide  whether  and  to  what  extent  the  parties  have  modi- 
fied the  common  law  obligation  and  liability  by  special 
contract,  if  they  have  made  one.  They  may  have  ex- 
pressly eliminated  from  the  purview  of  the  contract  any 
liability  of  the  carrier  for  certain  possible  losses,  in  which 
event  these  losses  cannot  be  recovered  for ;  or  they  may 
have  so  contracted  as  to  add  to  the  possible  consequences 
for  which  the  carrier  will  be  held  liable. 

In  cases  involving  the  carrying  of  passengers,  common 
law  duties  and  liabilities  of  the  carrier  are  of  much  im- 
portance, while  there  is  so  little  of  the  making  of  actual 
express  contracts  in  regard  to  the  carriage  of  passengers, 
that  the  intention  of  the  parties  does  not  play  so  large  a 
part  in  stating,  limiting,  or  extending  liability,  as  it  plays 
in  cases  involving  the  carriage  of  goods.  The  cases  in- 
volving carriers  of  passengers  are  ordinarily  actions  for 
wrongful  refusal  to  carry  the  plaintiff,  wrongful  ejection 
from  a  train,  unreasonable  delay,  wrongful  treatment 
while  a  passenger,  or  for  personal  injury  suffered  while 
being  carried.  Most  of  the  elements  involved  in  these 
cases  are  elements  of  tort ;  and  the  question  of  proximity 
of  injurious  result  is  more  important  and  more  frequently 
raised  than  the  question  of  naturalness  and  probability. 

142.  Failure  of  Shipper  to  Deliver  Goods  for  Shipment. 

— Where  a  shipper  fails  to  deliver  goods  to  the  carrier 
for  shipment,  after  contracting  with  the  carrier  for  their 
carriage,  the  carrier  may  be  damaged  simply  to  the  ex- 
tent of  his  loss  of  profit  on  the  transaction ;  or,  to  express 
it  in  another  way,  his  damage  may  be  the  difference  be- 
tween the  contract  price  and  the  cost  of  carrying  the 
goods.  But  it  sometimes  happens,  as  in  a  case  wherein 
the  contract  of  carriage  is  large  enough  to  necessitate  the 
use  of  a  whole  ship,  that  the  carrier  can  get  another  cargo 
to  take  the  place  of  that  of  the  shipper;  and,  where  he 
has  done  this  or  might  have  done  it  by  the  exercise  of 


266  LAW  OF  DAMAGES 

reasonable  diligence,  the  amount  which  he  has  earned  oi 
might  have  earned  on  a  new  cargo,  may  be  deducted  from 
his  damages.  There  are,  however,  some  cases  of  failure 
of  the  shipper  to  deliver  goods  to  the  carrier,  in  which 
the  measure  of  damages  is  the  contract  price  of  the  car- 
riage. Such  a  case  is  one  wherein  a  ship  is  obliged  to 
sail  on  a  certain  day  in  order  to  fulfill  contracts  with 
other  shippers,  all  costs  of  the  voyage  being  fixed,  and  it 
being  impossible  to  get  other  goods  to  fill  the  deficiency 
in  the  cargo.  The  carrier's  loss,  in  such  a  case,  is  the 
whole  contract  price. 

The  damages  assessed  against  the  shipper,  in  these 
cases,  vary  greatly,  according  to  the  facts  and  the  nature 
of  the  case.  *'The  measure  of  damages  is  full  indem- 
nity for  all  they  have  lost  through  the  default  of  the 
shippers.  *'  ^ 

143.  Compensation  of  the  Carrier  of  Goods. — The  com- 
pensation of  the  carrier  is  usually  fixed  by  contract  or  by 
statute.  In  the  absence  of  any  contract  stipulation  or 
statutory  regulation,  the  carrier  is  entitled  to  reasonable 
compensation  for  his  services.^ 

144.  Failure  of  Carrier  to  Receive  and  Carry  Goods. — 
Where  the  carrier  wrongfully  refuses  or  fails  to  carry 
goods,  the  measure  of  damages  ordinarily  is  the  differ- 
ence between  what  would  have  been  the  value  of  the  goods 

1 — ^Por  an  excellent  discussion  of  sonable,  and  such  as  is  customarily 

this  phase  of  the  subject,  see  Bai-  charged  others  for  like  service  un- 

ley     V.     Damom,     (1854)     3     Gray  der    like    conditions." — Louisville, 

(Mass.)  92.  Evansville,  etc.,  R.  Co.  v.  Wilson, 

2  — "Without      regard   to      the  (1889)  119  Ind.  352,  21  N.  E.  341, 

rights  of  the  shipper  and  carrier,  4  L.  R.  A.  244. 

as  they  may  be  under  special  con-  See  also:  Johnson  v.  Pensacola, 

tracts,    the    agreement    which    the  etc.,  R.  Co.,  (1878)  16  Fla.  623,  26 

law  imports  into  every  bill  of  lad-  Am.    Rep.    731;    Gray   v.    Missouri 

ing  which   does  not   stipulate   the  River  Packet   Co.,    (1876)   64  Mo, 

price  to  be  paid  for  the  service  is,  47. 
that  the  compensation  shall  be  rea- 


CARRIERS  267 

at  destination  when,  if  carried,  they  should  have  arrived, 
and  their  value  at  such  time  at  the  starting-point,  plus  the 
necessary  expense  of  storage  and  deterioration,  and  the 
like,  caused  by  its  detention,  minus  the  reasonable  cost 
of  transportation.^ 

145.  Loss  or  Destruction  of  Goods  While  in  the  Hands 
of  the  Carrier. — Ordinarily,  the  measure  of  damages  for 
the  complete  loss  or  destruction  of  goods  by  the  carrier 
is  the  value  of  the  goods  at  the  time  and  place  set  for 
delivery  to  the  consignee.*  The  loss  of  such  value  is 
either  the  total  damage  or  an  item  of  damage  in  every 
case  of  this  kind.  Such  a  loss  is  a  direct  and  necessary 
result  of  the  wrong  of  the  carrier ;  but  there  are  various 
other  and  consequential  results  that  accrue  in  many  of 
these  cases.  A  loss  directly  resulting  from  the  carrier's 
wrong  is  always  taken  to  have  been  within  the  contempla- 
tion of  the  parties ;  ^  but  consequential  damages,  such  as 
loss  of  profits  or  deterioration  of  raw  material  in  the 
hands  of  the  consignee  for  manufacture,  may  or  may  not 
have  been  contemplated.  Special  pleading  and  proof  that 
a  consequential  result  is  natural  and  probable  is  essential 
to  a  recovery  of  damages  therefor. 

146.  Delay  in  the  Carriage  of  Goods. — ^Where  the  car- 
rier delivers  the  goods  late,  the  shipper  is  ordinarily 
entitled  to  recover  only  the  excess  of  the  value  of  the 
goods,  at  what  would  have  been  the  proper  time  and  place 
of  delivery  under  the  contract,  over  the  value  of  the  goods 
at  the  time  and  place  of  the  carrier's  breach  of  contract, 
plus  interest  on  their  value  or  compensation  for  the 

3— Substantially  tlie  rule  given  Allen    (Mass.)    112;   Watkinson  v. 

by  Skinner,  J.,  in  Galena,  etc.,  R.  Laughtcm,  (1811)  8  Johns.  (N.  Y.) 

Co.  V.  Rae,   (1857)    18  111.  488,  68  213. 

Am.  Dec.  574.     See  also  Cobb,  etc.,  5— McGregor  v.  Kilgore,   (1834) 

Co.     V.    Illinois     Central    R.     Co.,  6  Ohio  358,  27  Am.  Dec.  260.     See 

(1874)   38  la.  601.  also    Sangamon,    etc.,    R.    Co.    v. 

4— Spring  v.   Haskell,   (1862)   4  Henry,  (1852)  14  HI.  156. 


268  LAW  OF  DAMAGES 

loss  of  their  use  during  the  time  of  delay.®  To  this  may 
be  added  other  elements  of  damage  proper  to  be  con- 
sidered only  if  within  the  contemplation  of  the  parties, 
such  as  loss  of  profits  '  and  the  necessary  payment  by  the 
shipper  of  liquidated  damages  under  a  contract  with  the 
consignee.^ 

'  *  In  the  case  of  property  like  films  intended  for  use  as 
distinguished  from  sale  or  some  other  purpose,  the  ordi- 
nary damages  would  be  the  loss  of  rental  value  caused 
by  the  delay  and  perhaps  certain  incidental  expenses  if 
incurred. ' '  ® 

If  the  carrier  accepts  the  goods  with  knowledge  of  cir- 
cumstances such  as  would  cause  the  shipper  to  suffer 
unusual  damage  in  the  event  of  delay,  special  damages 
may  be  assessed  for  delay,  upon  special  pleading  and 
proof;  but,  if  the  carrier  is  not  made  aware  of  such  cir- 
cumstances, the  shipper  is  restricted  to  damages  in  such 
an  amount  as  would  compensate  for  the  loss  that  w^ould 
ordinarily  flow  from  the  delay.  It  has  been  held  that,  in 
order  that  a  shipper  of  films  may  hold  an  express  com- 
pany liable  for  special  profits  to  be  made  in  the  motion 
picture  business,  which  are  lost  because  of  the  company's 
delay,  he  should  have  notified  the  carrier  of  the  particular 
circumstances  making  important  their  delivery  by  a  cer- 
tain day,  and  that  the  carrier  should  have  been  informed 
that  plaintiff  had  made  certain  plans  based  upon  the 
arrival  of  the  films  at  a  certain  time,  and  that  the  non- 

6 — Cutting  V.   Grand  Trunk  By.  8 — Illinois     Central     E.     Co.     v. 

Co.,   (1866)   13  Allen  (Mass.)    381.  Southern    Seating    &    Cabinet    Co., 

7— Devereux  v.  Buckley,   (1877)  (1900)  104  Tenn.  568,  58  S.  W.  303. 

34  O.  St.  16,  32  Am.  Eep.  342.    But  9— Chapman     v.     Fargo,     (1918) 

no  recovery  can  be  had  for  loss  of  223  N.  Y.  32,  119  N.  E.  76,  Ann. 

profits  or  other  consequential  loss,  Cas.     1918  E     1054,    citing:     Suth. 

unless   it   is   shown    to    have   been  Dam.    §905;     Hutch.    Car.    §1373. 

within    the    contemplation    of    the  See  Ann.  Cas.  note  on  above  case, 

parties.       Hadley     v.     Baxendale,  "Measure    of    Damages    for    Car- 

(1854)    9    Exch.    341,   5    E.    R.    C.  rier's  Delay  in  Transporting  Prop- 

502;  Home  v.  Midland  By.,  (1872)  erty  Intended  for  Exhibition  Pur- 

L.  E.  7  C.  P.  583.  poses." 


(CARRIERS  269 

arrival  of  the  films  would  probably  cause  certain 
damage.^"  Mere  delivery  to  the  carrier  of  motion  picture 
films,  with  notice  to  rush,  does  not  suffice  to  put  the  car- 
rier on  notice  that  the  films  are  those  of  a  big  ' '  feature, ' ' 
for  which  unusually  high  prices  of  admission  will  be 
charged,  and  which  will  draw  unusually  large  crowds,  so 
as  to  hold  the  carrier  for  the  large  loss  of  profits  to  the 
shipper.^^ 

A  carrier  is  under  no  general  obligation  to  deliver 
goods  instantly  or  with  the  very  greatest  speed  physically 
possible.  He  is  allowed  a  reasonable  period  in  which  to 
make  delivery,  and  only  upon  the  expiration  of  such 
reasonable  period  can  damages  for  delay  begin  to  be 
computed.^2 

For  delay  of  the  carrier  in  furnishing  facilities  for 
shipment  of  goods,  the  shipper  may  recover  damages  for 
the  expense  of  care  and  keeping,  and  the  depreciation  in 
value  occurring  either  because  of  a  falling  market  or  be- 
cause of  deterioration  in  quality  during  the  period  of 
unreasonable  delay.^^ 

147.  Mitigation  of  Dama-ges. — ^Here  as  elsewhere,  facts 
tending  to  lessen  plaintiff's  loss  may  be  shown  in  mitiga- 
tion of  damages.  For  instance,  although  acceptance  by 
the  owner  of  goods  negligently  injured  by  the  carrier  does 
not  deprive  him  of  his  right  of  action,  it  goes  in  mitiga- 
tion of  damages.^* 

148.  Failure  or  Refusal  to  Carry  Passenger. — A  car- 
rier must  respond  in  damages  for  a  failure  or  refusal 
to  carry  a  person  whom  he  has  agreed  to  accept  as  a 

10— Chapman    v.    Fargo,    (1918)  western    Ey,    Co.,    (1888)    71    Wis, 

223  N.  Y.  32,  119  N.  E.  76,  L.  R.  372,  37  N.  W.  432,  5  Am.  St.  Rep. 

A.  1918  F  1049.  226. 

11 — Chapman  v.  Fargo,  supra.  14 — Bowman  v.  Teall,  (1840)   23 

12— Sherman  v.  Hudson  River  R.  Wend.    (N.  Y.)    306,   35  Am.   Dee. 

Co.,   (1876)    64  N.  Y.  254.  562. 

13 — Ayrea  v.   Chicago   &  North- 


270  LAW  OF  DAMAGES 

passenger  or  a  person  who  offers  himself  as  a  passenger, 
as  the  carrier  must  fulfill  his  contracts  to  carry  pas- 
sengers and  must  abide  by  the  common  law,  which  com- 
pels him  to  accept  as  passengers  all  proper  persons  offer- 
ing themselves  for  transportation.  Independently  of  the 
question  of  contractual  liability,  a  carrier  wrongfully 
refusing  to  carry  a  passenger  or  wrongfully  discharging 
him  from  its  conveyance  and  thus  not  completing  the 
carriage,  commits  a  tort;  *^  and  it  follows  that  all  proxi- 
mate injurious  results  may  be  recovered  for,  whether  they 
were  contemplated  by  the  parties  or  not.^"  But  remote 
damages  are  not  recoverable.^*^  The  carrier  is  liable,  on 
his  contract  of  carriage,  for  all  elements  of  damage  that 
may  fairly  be  said  to  have  been  within  the  contemplation 
of  the  parties  at  the  time  of  the  making  of  the  contract. 

149.  Delay  in  Carriage  of  Passenger. — The  measure 
of  damages  for  negligent  delay  in  the  transportation  of  a 
passenger  varies  greatly  according  to  the  nature  of  the 
case.  The  element  of  damage  normally  accruing  as  a 
proximate  result  of  the  delay  is  loss  of  time.*^  This  is  a 
direct  result  of  the  carrier's  delay,  always  sure  to  happen. 
Other  results  stand  on  a  different  footing,  as  they  are  not 
the  normal  or  usual  results  and  so  cannot  be  recovered 
for  in  the  absence  of  special  pleading  and  proof .^*  Here, 
as  elsewhere,  remote  damages  are  excluded.^® 

150.  Wrongful  Refusal  to  Furnish  Accommodations  to 
Person  Wishing  to  Become  Passenger. — Where  a  com- 

15 — Nevin  v.  Pullman  Palace  Car  18 — Cooley    v.    Pennsylvania   R. 

Co.,  (1883)    106  ni.  222.  Co.,  (1903)  81  N.  Y.  Supp.  692,  40 

16— Hobbs   V.  London   &  South-  Misc.  239. 

western  Ry.,  (1875)   10  Q.  B.  Ill;  19 — Coaley    v.    Pennsylvania    R. 

Brown  v.  Chicago,  Milwaukee  &  St.  Co.,  supra. 

Paul  Ry.  Co.,  (1882)   54  Wis.  342,  20— Turner    v.    Great    Northern 

11  N.  W.  356,  41  Am.  Rep.  41.  Ry.   Co.,    (1896)    15  Wash.  213,  46 

17— Hobbs  V.  London   &   Somth-  Pac.  243,  55  Am.  St.  Rep.  883. 
western    Ry.,   supra;    Baltimore    & 
Ohio  R.  Co.  V.  Carr,  (1889)  71  Md. 
135,  17  Atl.  1052. 


CARRIERS  271 

mon  carrier  wrongfully  refuses  accommodations  to  a  pas- 
senger, it  is  liable  for  such  refusal  and  for  any  accom- 
panying vexation,  indignity,  or  disgrace.^  ^  Verdicts  for 
large  amounts  have  been  sustained  in  such  cases.^^ 

But  damages  cannot  be  recovered  for  the  rightful  ex- 
clusion of  a  passenger  from  a  car.  Where  a  sleeping-car 
company  sells  a  passenger  a  ticket  for  a  berth  in  one  of 
its  cars,  and  later,  finding  that  he  has  a  loathsome  disease, 
excludes  him  from  its  car,  the  measure  of  damages  is  the 
sum  paid  for  the  ticket,  with  interest  thereon.^^ 

151.  Wrongful  Expulsion,  and  Personal  Injuries  to 
Passengers. — The  wrongful  expulsion  of  a  passenger  may 
be  considered  as  either  a  breach  of  contract  or  a  tort. 
Numerous  recoverable  elements  of  damage  are  possible  in 
such  cases.  Among  the  possible  elements  are  the  pas- 
senger's loss  of  his  transportation,  loss  of  time,  humilia- 
tion, indignity,  mental  suffering,  and  any  accompanying 
personal  injury.-^  The  carrier  is  liable  for  all  injuries 
proximately  resulting  from  wrongful  expulsion,^^  but  is 
not  liable  for  remote  results,  for  which  passengers  often 
try  to  recover.2^ 

The  measure  of  damages  for  the  personal  injury  of  a 
passenger  through  the  negligence  of  the  carrier,  is  the 
same  as  in  any  other  case  of  personal  injury.  The  car- 
rier, although  not  an  insurer  of  the  safety  of  a  passenger, 

21— Patterson    v.    Old   Dominion  54  Wis.  342,  11  N.  W.  356,  41  Am. 

S.  S.  Co.,  (1906)   140  N.  Car.  412,  Eep.  41. 

53  S.  E.  224,  5  L.  R,  A.   (N.  S.)  25— Carsten  v.  Northern  Pacific 

1012.  R.  Co.,  (1890)  44  Minn.  454,  47  N. 

22— Indianapolis,  etc.,  By.  Co.  v.  W.  49,  9  L.  E.  A.  688,  20  Am.  St. 

Rinard,  (1874)   46  Ind.  293.  Eep.    589;    O'Rourke    v.    Citizens' 

23— Pullman  Car  Co.  v.  Krauss,  Street   Ry.   Co.,    (1899)    103   Tenn, 

(1906)    145   Ala.   395,   40    8a.   398,  124,  52  S.  W.  872,  76  Am.  St.  Rep. 

4   L.   R.   A.    (N.    S.)    103,   8   Ann.  639. 

Cas.  218.  26 — Carsten  v.  Northern  Pacific 

24 — See  Brown  v.  Chicago,  Mil-  R,  Co.,  supra, 
waukee  &  St.  Paul  Ry.  Co.,  (1882) 


272  LAW  OF  DAMAGES 

is  under  a  duty  to  exercise  the  highest  degree  of  care; 
and  many  cases  involving  personal  injury  arise  between 
passenger  and  carrier.^' 

152.  Misdirection  of  Passenger. — Where  a  carrier  mis- 
directs a  passenger  as  to  his  route  over  its  lines,  it  is 
liable  for  the  proximate  and  certain  results  of  such  mis- 
direction. The  misdirected  passenger  may  recover  for 
injuries  suffered  by  reason  of  having  to  make  a  greater 
number  of  changes  of  trains  than  would  have  been  re- 
quired if  the  proper  route  had  been  taken.^^ 

153.  Liability  for  Baggage. — The  carrier  does  not  im- 
pliedly contract  to  carry  immense  sums  of  money  or  prop- 
erty of  great  value  with  each  passenger  and  keep  it  safe ; 
and  so,  where  sixteen  thousand  dollars*  worth  of  bonds 
were  stolen  from  the  person  of  a  passenger,  the  carrier 
cannot  be  held  for  their  value,  but  is  liable  only  for  the 
value  of  such  property  as  would  ordinarily  be  carried  by 


a  passenger.2» 


CASE  ILLUSTRATIONS 


1.  A  places  goods  in  the  hands  of  B,  a  common  carrier,  to 

transport  by  ship  from  New  York  to  San  Francisco.    The  goods 

are  lost  in  transit.    The  measure  of  damages  ' '  is  the  market  value 

of  the  goods  at  the  port  of  delivery ;  for,  if  the  contract  had  been 

fulfilled,  the  shipper  would  have  realized  that  sum,  and  that  sum 
only.  "30 

2.  A  still-worm,  to  be  used  by  plaintiff  in  the  manufacture  of 
turpentine,  was  shipped  over  defendant's  road.  Through  an 
error  of  defendant,  it  was  carried  to  a  station  other  than  its 
destination,  and  was  delivered  to  another  party,  eight  miles  in 

27— See  Weir  v.  TJnion  Ey.  Co.,  S.  W.  746,  2  L.  R.  A.  (N.  S.)  110. 

(1907)  188  N.  Y.  416,  81  N.  E.  168.  29— Weeks  v.  New  York,  etc.,  R. 

28— Robertson  v.  Louisville  &  N.  Co.,    (1878)    72   N.   Y.   50,   28   Am. 

R.    Co.,    (1904)    142    Ala.    216,    37  Rep.  104. 

So.  831;   St.  Louis  S.  W.  Ry.   Co.  30— Ringgold  v.  Haven,  (1850)  1 

V.  White,   (1905)   99  Tex.  359,  89  Calif.  108. 


CAERIERS  273 

the  country.  Plaintiffs,  after  various  efforts  and  much  expense, 
found  the  worm  six  weeks  later.  Held,  that  plaintiffs  may 
recover  for  the  loss  of  crude  turpentine,  which,  by  reason  of 
the  delay,  overflowed  and  was  lost,  and  for  the  necessary  expenses 
incurred  in  searching  for  the  worm.  The  purpose  of  such  search 
was  to  avoid  damage.^^ 

3.  Plaintiffs'  machinery,  while  in  the  hands  of  defendant 
carrier  was  delayed  for  three  months.  Plaintiffs  spent  a  large 
sum  in  looking  for  the  machinery,  and  were  damaged  much  in 
the  loss  of  use  of  it,  by  stoppage  of  their  business,  and  the  idle- 
ness of  twenty-five  workmen  for  three  months.  Held,  that,  unless 
specially  pleaded,  the  elements  of  damage  other  than  loss  of  use 
of  the  machinery  could  not  be  recovered  for.32 

4.  Defendant  sold  plaintiff  a  ticket  from  New  York  to  San 
Francisco,  via  Nicaragua.  Defendant's  agent  had  represented  to 
plaintiff  that  the  Nicaragua  route  was  healthful.  No  vessel 
of  defendant  arriving  in  Nicaragua  to  take  plaintiff  on  to  San 
Francisco,  plaintiff  waited  for  a  month,  unsuccessfully  trying 
to  get  passage  for  the  rest  of  the  journey.  In  this  he  failed,  and, 
owing  to  the  unhealthful  condition  of  the  country,  became  ill- 
He  finally  returned  to  New  York.  * '  The  time  the  plaintiff  lost  by 
reason  of  his  detention  on  the  isthmus ;  his  expenses  there,  and 
of  his  return  to  New  York ;  the  time  he  lost  by  reason  of  his  sick- 
ness after  he  returned  home;  and  the  expense  of  such  sickness, 
so  far  as  the  same  were  occasioned  by  the  defendant 's  negligence 
or  breach  of  duty,  were  legitimate  and  legal  damages  which  the 
plaintiff  was  entitled  to  recover."  ^3 

31 — Savannah,    etc.,   Ey.    Co.    v.  33  —  WTilUams      v.      Vanderbilt, 

Pritchard,  (1887)  77  Ga.  412,  1  (1863)  28  N.  Y.  217,  84  Am.  Dec. 
S.  E.  261,  4  Am.  St.  Rep.  92.  333. 

32 — Priestly  v.  Northern  Indi- 
ana, etc.,  E.  Co.,  (1861)  26  111.  205, 
79  Am.  Dec.  369. 


Bauer  Dam. — 18 


CHAPTER  XXXVn 

Telegraph  and  Telephone  Companies 

154.  Telegraph  Companies'  Liability  in  General. — Al- 
though telegraph  companies  are  not  common  carriers, 
except  as  made  so  by  statute,^  their  legal  duty  to  accept 
and  convey,  with  reasonable  care,  the  messages  of  all 
comers,  resembles  the  common  law  duty  of  the  common 
carrier.  The  telegraph  company  does  not  have  to  re- 
spond in  damages  for  elements  of  loss  that  were  not 
"within  the  contemplation  of  the  parties  at  the  time  of 
making  the  contract,  any  more  than  would  any  other  type 
of  contractor. 

If  the  despatch  shows  on  its  face  that  it  is  a  business 
despatch  and  shows  the  nature  of  the  business,  the  com- 
pany is  held  to  contemplate  such  loss  as  would  naturally 
result  from  its  failure  to  transmit  the  despatch  promptly 
and  correctly,  but  the  company  would  no  more  be  liable 
here  for  mental  suffering  than  in  any  other  case  of  com- 
mercial contract,  because  such  suffering  is  not  usually 
contemplated  as  a  natural  and  probable  result  of  a  breach 
of  a  mere  business  contract.  Error  or  delay  in  the  trans- 
mission of  a  non-commercial  message  is  often  capable  of 
producing  loss  other  than  pecuniary,  the  nature  and  ex- 
tent of  probable  losses  depending  upon  the  nature  of  the 
contents.  Messages  concerning  sickness  or  death  of  rela- 
tives or  friends  are,  of  themselves,  sufficient  notice  to  the 
company  that  the  sender  or  sendee  may  experience  mental 
suffering  as  the  result  of  a  failure  to  transmit  correctly 
and  deliver  promptly ;  and  so,  where  there  is  a  breach  of 


1— See  Chapter  XIII,  "Conflicts 
of  Laws." 


274 


TELEGRAPH  AND  TELEPHONE  COMPANIES  275 

contract  to  convey  such  a  message,  damages  for  mental 
suffering  are  frequently  allowed.^ 

Where  a  telegraph  company  fails  to  deliver  a  message 
announcing  that  a  certain  stock  of  goods  can  be  bought 
at  a  bargain,  the  sendee  cannot  recover  for  the  loss  of 
the  bargain.  Such  loss  is  remote  and  speculative.  Either 
the  sender  or  the  sendee  might  have  decided  later  not  to 
make  a  contract,  even  if  the  telegram  had  been  delivered.^ 

155.  Liability  for  Cipher  Message. — Some  courts  hold 
that,  where  a  message  is  in  cipher,  the  telegraph  com- 
pany, as  it  is  not  acquainted  with  the  nature  of  the  mes- 
sage and  not  aware  of  the  kind  or  extent  of  the  conse- 
quences that  may  ensue  in  the  event  of  error  or  delay,  is 
liable,  in  case  of  error  or  delay,  only  in  the  amount  paid 
for  the  sending  of  the  message.^  Other  courts  take  what 
seems  a  more  reasonable  view,  considering  the  exigencies 
and  well  known  customs  of  modern  business, — ^that  the 
telegraph  company  must  respond  in  damages  for  losses 
proximately  resulting  from  \iolation  of  a  contract  to 
transmit  and  deliver  a  cipher  message  clearly  relating 
to  important  business.^ 

2— See    Chapter   XXI,    "Mental  Co.,  (1893)  154  U.  S.  1,  38  L.  ed. 

Suffering."  883,   14   Sup.   Ct.   1098;    Fergusson 

3 — Western  Union  Tel.  Cou  V.  v.  Anglo-American  Telegraph  Co., 
Caldwell,  (Ark.  1918)  202  S.  W.  (1896)  178  Pa.  377,  35  Atl.  979,  35 
232,  L,  R.  A.  1918  D  121;  Fulker-  L.  B.  A.  554,  56  Am.  St.  Rep.  770. 
son  V.  Western  Union  Tel.  Co.,  5 — "It  is  urged  that,  the  mes- 
(1913)  110  Ark.  144,  161  S.  W.  sage  being  in  code  and  unex- 
168,  Ann.  Cas.  1915  D  221,  5  N.  C.  plained,  a  recovery  cannot  be  had. 
C.  A.  158;  Hall  v.  Western  Uniom  «  »  »  gut  go^e  messages  in  the 
Tel.  Co.,  (1910)  59  Fla.  275,  51  milling  and  grain  business  are 
So.  819,  27  L.  R.  A.  (N.  S.)  639;  common,  and  are  known  by  the 
Western  U.  Tel.  Co.  v.  Watson,  telegraph  companies  to  be  impor- 
(1894)  94  Ga.  202,  21  S.  E.  457,  tant.  In  this  case,  the  message  was 
47  Am.  St.  Rep.  151;  Shawnee  Mill  only  partly  in  code,  and  the  man- 
Co.  V.  Postal  Tel.-Cable  Co.,  (1917)  ager  of  the  telegraph  company 
101  Kan.  307,  166  Pac.  493,  L.  R.  admitted  that  he  knew  it  was  a 
A.  1917  F  844.  business  message;  and  even  to  one 

4 — Primrose  v.  Western  U.  Tel.  unfamiliar  with  the  grain  dealer's 


276  LAW  OF  DAMAGES 

156.  Who  May  Maintain  Action  Against  a  Telegraph 
Company  for  Its  Failure  to  Send  a  Message  Promptly 
and  Correctly. — Obviously,  the  contract  for  the  trans- 
mission of  a  message  being  between  the  sender  and  the 
telegraph  company,  the  sender  has  his  action  for  any 
violation  of  the  contract  by  the  company.^  It  is  also  held 
that  the  telegraph  company  is  liable  to  the  sendee  for 
loss  of  the  message  or  delay  or  error  in  its  transmission.^ 

Like  a  common  carrier,  a  telegraph  company  is  under 
a  general  legal  duty  to  the  public.  It  is  not  a  carrier, 
but  it  is  under  a  public  duty  to  convey  messages  skilfully 
and  carefully,  and  is  under  a  specific  duty  to  senders  and 
sendees  to  exercise  due  skill  and  care  in  the  transmission 
of  their  messages.  Violation  of  this  legal  duty  by  a  tele- 
graph company  is  a  tort,  just  as  the  violation  of  a  similar 
duty  by  a  common  carrier  is  a  tort,  so  that,  independently 
of  the  sendee's  right  to  sue  on  the  contract  of  transmis- 
sion, he  has  his  action  in  tort.^  However,  in  many  in- 
stances, the  right  of  the  sendee  to  sue  on  the  contract 
itself  is  unquestionable,  as  it  frequently  happens  that  the 
sendee,  and  not  the  sender,  is  the  real  party  in  interest  or 
the  party  for  whose  benefit  the  telegram  is  sent ;  ®  or  it 
happens  that  the  sendee  has  some  interest  at  least  in 

■  code    the    message    disclosed    that  6 — Primrose  v.  Western  U.  Tel. 

something  or  other  involved  in  the  Co.,   (1894)   154  U.  S.  1,  38  L.  ed. 

grain      or      milling     business    was  883,  14  Sup.  Ct.  1098, 

booked  on  Kansas  City  basis.    That  7 — Herron  v.  Western  Union  Tel. 

was   all   the    defendant   needed   to  Co.,   (1894)    90  la.   129,  57  N.  W. 

know  about  it,  to  charge  it  with  696. 

notice   that   a  failure   to   transmit  8 — Bailey  v.  Western  Union  Tel. 

the  message  correctly  would  prob-  Co.,    (1910)    227    Pa.    522,    76   Atl. 

ably  lead  to  serious  consequences."  736,   19   Ann.    Cas.    895;    Tobin    v. 

— Shawnee   Milling  Co.  v.   Kansas  Western    Union    Tel,    Co.,    (1892) 

Postal  Telegraph-Cable  Co.,  (1917)  146  Pa.   375,   23   Atl.   324,  28  Am. 

101  Kan,  307,  166  Pac.  493,  L.  R.  St.  Rep.  802. 

A,  1917  F  844;  Western  Union  Tel.  9 — Western    Union    Tel.    Co.    v. 

Co.  V.  Eubank,  (1897)  100  Ky.  591,  Adams,   (1889)   75  Tex.  531,  12  S. 

38   S.  W.   1068,   36  L.   R.   A.   711,  W.  857,  6  L.  R.  A.  844,  16  Am.  St, 

66  Am.  St.  Rep,  361,  1  Am.  Neg,  Rep.  920, 
Rep,  244, 


TELEGRAPH  AND  TELEPHONE  COMPANIES  277 

the  prompt  and  correct  transmission  of  the  message.^^  It 
would  seem  that  the  addressee  of  a  message  announcing 
sickness  or  death  of  a  relative  or  friend  would  be  such  a 
party  in  interest  as  would  have  a  right  of  action  for 
breach  of  the  contract  of  transmission,  and  it  is  usually  so 
held.^^  Strangely  enough,  however,  it  has  been  held  that 
the  addressee  of  a  message  announcing  illness  is  not, 
merely  because  of  his  being  addressee,  either  a  party  to 
the  contract  or  a  party  for  whose  benefit  the  contract  has 
been  made,  and  that  he  has  no  right  of  action.^^  This 
holding  is  placed  partly  upon  the  ground  that  there  was 
nothing  in  the  message  to  show  the  defendant  that  its 
transmission  would  be  of  benefit  to  the  plaintiff.  It 
might  properly  be  asked  whether  messages  announcing 
sickness  or  death  are  not  usually  in  regard  to  the  illness 
or  demise  of  a  relative  or  very  close  friend  of  the  ad- 
dressee, so  that  any  message  of  this  kind  should  of  itself 
indicate  that  the  addressee  is  interested  in  receiving  it 
and  that  he  will  feel  himself  injured  by  its  delay  or  non- 
transmission,  even  if  he  does  not  receive  a  positive  benefit 
from  the  prompt  transmission  of  the  message.^^     The 

10 — Herron  v.  Western  U.  Tel.  formanee  of  the  contract  of  trans- 
Co.,  (1894)  90  la.  129,  57  N.  W.  mission.  Prospective  buyer  and 
696.  In  this  case,  defendant  neg-  seller  are  both  parties  in  interest, 
ligently  failed  to  deliver  to  plain-  See  also  Western  Union  Tel.  Co. 
tiff  a  telegram  making  him  an  of-  v.  Du  Bois,  (1889)  128  111.  248, 
fer  for  his  horse,  an  inferior  ani-  21  N.  E.  4,  15  Am.  St.  Eep.  109. 
mal,  with  no  market  value  in  the  11 — International  Ocean  Tel.  Co. 
vicinity  in  which  he  then  was,  valu-  v.  Saunders,  (1893)  32  Fla.  434,  14 
able  only  for  breeding  purposes.  So.  148,  21  L.  R.  A.  810;  Mentzer 
Plaintiff  later  sold  the  horse  for  v.  Western  Union  Tel.  Co.,  (1895) 
a  less  sum  than  the  amount  of  the  93  Ja.  752,  62  N.  W.  1,  57  Am.  St. 
telegraphic  offer,  but  for  all  that  Rep.  294,  28  L.  R.  A.  72;  Western 
could  be  realized  for  him  with  rea-  Union  Tel.  Co.  v.  Gahan,  (1897) 
sonable  effort  to  secure  the  best  17  Tex.  Civ.  App.  657,  44  S.  W. 
price  obtainable.    Held,  that  plain-  933. 

tiff  can  recover  the  difference  be-  12 — ^Western   Union   Tel.    Co.    v. 

tween  the  price  offered  in  the  mes-  Wood,   (1893)  57  Fed.  471,  6  C.  C. 

sage  and  the  price  later  received.  A.  432,  13  U.  S.  App.  317,  21  L. 

In   such   cases,  both   sender  and  R.  A.  706. 

addressee  have  interest  in  the  per-  13 — See  Davis  v.  Western  Union 


278 


LAW  OF  DAIVIAGES 


sendee  clearly  lias  a  right  to  maintain  an  action  where 
the  sender  is  merely  his  agent.  ^^ 

The  telegraph  company  is  also  liable  to  those  who  ap- 
pear in  the  message  to  be  beneficiaries  thereof.^^ 

Furthermore,  it  is  also  liable  to  an  undisclosed  prin- 
cipal of  the  sender,  but  not  to  an  undisclosed  principal 
of  the  addressee.^^ 

A  stranger  cannot,  by  acting  upon  a  telegram  errone- 
ously transmitted,  make  the  telegraph  company  liable 
for  such  damage  as  he  may  suffer  by  reason  of  his  so 
acting.    The  company  owes  him  no  duty.^"^ 


157.  Telephone  Companies. — A  telephone  company  en- 
counters only  a  few  of  the  possibilities  of  liability  en- 


Tel.  Co.,  (1900)  107  Ky.  527,  21 
Ky.  Law  1251,  54  S.  W.  84i9,  92 
Am.  St.  Rep.  371. 

14 — Western  Union  Tel.  Co.  v. 
Cunningham,  (1892)  99  Ala.  314, 
14  So.  579.  Here  plaintiff  wired 
his  sister,  asking  her  to  inform  him 
in  regard  to  his  mother's  health. 
This  was  held  to  constitute  the 
sister  the  plaintiff's  agent,  so  that 
a  contractual  relation  existed  be- 
tween plaintiff  and  defendant  as 
to  the  transmission  of  the  reply, 
making  the  company  liable  in  a 
contract  action  for  delay  in  such 
transmission. 

16 — Western  Union  Tel.  Co.  v. 
Schriver,  (1905)  141  Fed.  538,  72 
C.  C.  A.  596,  4  L.  R.  A.  (N.  S.) 
678;  Whitehill  v.  Western  Union 
Tel.  Co.,  (1905)   136  Fed.  499. 

16 — "It  is  contended  that,  be- 
cause the  telegraph  company  owes 
the  duty  of  care  to  receive  and 
transmit  messages  correctly  to  the 
addressees,  to  the  senders,  and  to 
the  undisclosed  principals  of  the 
senders,  it  therefore  owes  it  to  the 
undisclosed  principals   of   address- 


ees. But  the  duty  to  the  undis- 
closed principals  of  senders  rests 
on  the  fact  that  contracts  have 
been  made  between  the  senders  and 
the  telegraph  company,  and  that  in 
the  negotiation  and  enforcement  of 
contracts  the  law  places  undis- 
closed principals  in  the  shoes  of 
their  agents,  so  that  the  telegraph 
company,  which  must  know  the 
law,  is  charged  with  notice,  and 
may  reasonably  anticipate  that  its 
misrepresentations  may  affect  them. 
It  has  no  contracts  with  addressees, 
and  hence  it  is  not  charged  by 
the  law  with  notice  that  their  un- 
disclorsed  principals,  or  others  to 
whom  they  may  display  the  mes- 
sages, will  probably  be  affected  by 
them." — Western  Union  Tel.  Co. 
V.  Schriver,  (1905)  141  Fed.  538, 
72  C.  C.  A.  596,  4  L.  R.  A.  (N.  S.) 
678.  See  also  Dodd  Grocery  Co. 
V.  Postal  Tel.  Cable  Co.,  (1901) 
112  Ga.  685,  37  S.  E.  981. 

17  —  McCormick  v.  Western 
Union  Tel.  Co.,  (1897)  79  Fed. 
449,  25  C.  C.  A.  35,  38  L.  R.  A. 
684. 


TELEGRAPH  AND  TELEPHONE  COMPANIES  279 

countered  by  a  telegraph  company.  The  former,  having 
no  control  over  the  framing  of  the  message  conveyed,  has 
none  of  the  duty  of  correct  transmission  of  a  message, 
as  has  the  latter.  A  telephone  company  owes  it  to  the 
public  and  to  all  the  members  thereof  who  wish  to  con- 
tract and  pay  for  it,  good  service.  It  is  liable  for  wrong- 
ful refusal  or  failure  to  give  such  service,  as  is  any  other 
public  service  corporation;  and,  for  such  refusal  or 
failure,  it  must  respond  in  damages  for  all  losses  proxi- 
mately resulting  therefrom. 

Where  a  telephone  company  wrongfully  discontinues 
service  to  a  business  man,  it  must  compensate  for  losses 
proximately  resulting  from  the  wrong,  including  loss  of 
profits.^^ 

Damages  for  wrongful  withdrawal  of  a  telephone  in- 
clude, besides  pecuniary  elements,  all  such  non-pecuniary 
elements  as  may  be  present  in  the  case,  such  as  incon- 
venience and  annoyance. ^^ 

CASE  ILLUSTRATIONS 

1.  A  and  B  were  partners  dealing  in  horses  and  mules.  B  went 
to  St.  Louis,  with  the  understanding  that  he  should  purchase 
mules  only  after  he  had  telegraphed  prices  and  received  instruc- 
tions from  A.  B  delivered  to  defendant  for  transmission  a  tele- 
gram to  A,  stating  that  he  could  buy  mules  fifteen  and  one-half 
hands  high  for  $117.50.  Defendant  incorrectly  transmitted  the 
telegram  to  read  $107.50.  A  therefore  instructed  B  to  buy  24 
mules  of  that  size  instead  of  cheaper  mules,  which  he  could  have 
sold  for  about  the  same  price.  Held,  that  A  and  B  can  recover 
of  defendant  the  difference  of  $10  on  each  mule  purchased.^o 

18 — Harbaugh    v.    Citizens   Tele-  20 — Hays  v.  Western  Union  Tel. 

phone   Co.,    (1916)    190   Mich.  421,  Co.,  (1904)  70  S.  Car.  16,  48  S.  E. 

157   N.   W.    32,   Ann.    Cas.    1918  E  608,  67  L.  E.  A.  481,  3  Ann.  Cae. 

117.  424,  106  Am.   St.  Eep.  731,  Gary, 

19 — Carmichael  v.  Southern  Bell  J.,  saying  in  dissent:     "The  direct 

Telephone  Co.,  (1911)   157  N.  Car.  and  proximate  result  of  the   error 

21,  72  S.  E.  619,  39  L.  K.  A.   (N.  in    sending    the    message    was    to 

g.)  651,  Ann,  Cas.  1913  B  1117,  cause  the  plaintiffs  to  purchase  the 


280  LAW  OF  DAMAGES 

2.  Defendant  telegraph  company  failed  to  deliver  to  plaintifTs 
a  message  advising  them  of  the  state  of  the  hog  market  at  St. 
Joseph,  to  which  point  plaintiffs  intended  to  ship  hogs.  Not 
hearing  from  St.  Joseph,  plaintiffs  shipped  their  hogs  to  Kansas 
City,  a  point  farther  away,  where  they  received  a  lower  price 
than  they  would  have  received  at  St.  Joseph.  Held,  that  plaintiff 
can  recover  as  damages  the  difference  between  the  market  price 
at  St.  Joseph  and  that  at  Kansas  City,  plus  excess  of  freight 
charges  to  the  latter  place  over  charges  to  the  former.^* 

3.  Defendant  telegraph  company  failed  to  deliver  to  plaintiff 
a  telegram  notifying  him  of  the  terms  of  a  contract  under  which 
he  was  to  labor  for  $2.50  per  day  for  a  period  not  stipulated. 
Held,  that  plaintiff  can  recover  only  nominal  damages.22 

4.  Plaintiff,  a  nineteen-year-old  boy,  delivered  a  message  to 
defendant,  to  be  transmitted  to  his  brother,  at  Lovelock,  Nevada, 
requesting  him  to  wire  him  to  Ogden,  Utah,  a  ticket  from  there 
to  his  home  at  Lovelock.  Plaintiff  informed  defendant's  agent 
at  Grand  Junction  that  he  had  no  means  to  lay  over  in  Ogden. 
Defendant  failed  to  deliver  the  telegram,  so  that  plaintiff  was 
left  at  Ogden,  400  miles  from  home,  with  only  $1.25.  He  was 
forced  out  of  Ogden  as  a  vagrant,  and  made  his  way  home  by 
alternately  walking  and  getting  free  rides  on  trains.    Held,  that 

mules  for  which  they  had  to  pay  Hays  case:  Western  U.  Tel.  Co, 
a  larger  sum  than  they  contem-  v.  Dubois,  (1889)  128  111.  248,  21 
plated  as  the  purchase  money  N.  E.  4,  15  Am.  St.  Rep.  109.  See 
thereof,  and  the  measure  of  their  note,  "Liability  of  Telegraph  Corn- 
damages  was  the  difference  in  the  pany  for  Erroneous  Transmission 
market  value  of  the  mules  at  the  of  Message  Announcing  Prices  or 
time  their  right  orf  action  accrued  State  of  Market,"  3  Ann.  Cas.  429. 
and  the  amount  they  were  com-  21 — Western  Union  Tel.  Co.  v. 
pelled  to  pay  by  reason  of  said  Collins,  (1890)  45  Kan.  88,  25  Pac. 
error.  This  mode  of  admeasuring  187,  10  L.  R.  A.  515.  It  should  be 
damages  is  more  certain  than  de-  noticed  that  there  was  evidence 
termining  the  amount  of  antici-  here  that  plaintiffs  would  have 
pated  prorfits  supposed  to  have  been  shipped  to  the  nearer  point  and  re- 
loet  by  the  error.  In  8  Am.  &  Eng.  ceived  the  higher  price,  and  not 
Encye.  of  Law  611,  it  is  said:  merely  evidence  that  they  might 
'Where  the  damages  may  be  esti-  have  done  so. 

mated  in  more  than  one  way,  that  22 — Merrill    v.    Western    Union 

mode    should    be    adopted    which  Tel,  Co.,  (1886)   78  Me,  97,  2  Atl, 

is  most  definite  and  certain,'  "  847. 
Accord  with  majority  otpinion  in 


TELEGRAPH  AND  TELEPHONE  COMPANIES  281 

plaintiff's  elements  of  damages  are:  "(1)  Price  of  telegram; 
(2)  wages  or  compensation  for  time  lost  in  reaching  his  home  at 
Lovelock;  (3)  price  of  meals  and  lodging  during  the  time  he 
would  be  en  route;  and  (4)  'mental  worry  and  distress'  accom- 
panying the  physical  fatigue  and  cold  while  out  on  the  winter 
journey — of  course,  including  the  physical  suffering  itself." 
$400  held  not  excessive.^^ 

23— Barnes     v.     Western    Union      Pac.  931,  1  Ann.  Cas.  346,  103  Am. 
Tel.   Co.,    (1904)    27    Nev.  438,   76      St.  Rep.  776. 


CHAPTER  XXXVni 
Breach  of  Promise  to  Marry 

158.  In  General. — The  action  for  breach  of  promise  to 
marry  is,  in  form,  an  action  on  a  contract;  but,  in  sub- 
stance, it  savors  less  of  contract  than  of  tort. 

The  elements  of  damage,  in  case  of  breach  of  promise 
to  marry,  may  be  included  under  four  general  heads, 
namely:  pecuniary  damage  through  the  making  of  the 
contract  and  the  defendant's  failure  to  fulfill  it;  non- 
pecuniary,  but  physical,  damage  through  loss  of  the  mar- 
riage; mental  suffering;  and  elements  of  aggravation. 
"It  is  impracticable  to  lay  down  precise  rules  for  the 
assessment  of  damages  in  an  action  for  a  breach  of 
promise  of  marriage.  Within  reasonable  limits,  the 
measure  of  damages  is  a  question  for  the  sound  discre- 
tion of  the  jury  in  each  particular  case.  And  in  assessing 
the  damages  they  may  take  into  consideration  the  plain- 
tiff's pecuniary  loss,  her  loss  of  opportunities  during  the 
engagement  to  the  defendant  for  contracting  a  suitable 
marriage  with  another,  the  disappointment  of  her  reason- 
able expectations  of  material  and  social  advantages  re- 
sulting from  the  intended  marriage,  the  injury  to  her 
health  and  feelings,  the  wounding  of  her  pride,  the  blight- 
ing of  her  affections,  and  the  marring  of  her  prospects 
in  life,  by  reason  of  the  defendant's  promise  and  his  re- 
fusal to  keep  it.  Compensatory  damages  may  be  awarded 
for  any  or  all  these  causes  if  the  evidence  in  the  particular 
case  warrants  it."  * 

1— Hahn  v.  Bettingen,  (1900)  81  125  N.  Y.  214,  26  N.  E.  308,  11 
Minn.  91,  83  N.  W.  467,  50  L.  R.  A.  L.  R.  A.  784,  says:  "It  is  ap- 
669.      Chellis    v.   Chapman,    (1891)       parent  that,  in  such  an  action  as 

282 


BREACH  OF  PROMISE  283 

159.  Direct  Pecuniaxy  Loss.— The  plaintiff  is  entitled 
to  recover  for  such  expenditures  as  she  has  reasonably 
made  in  reliance  upon  the  defendant's  promise,  as  for 
her  bridal  trousseau  in  cases  in  which  the  wedding  day 
has  been  agreed  upon  and  is  reasonably  near  at  hand  at 
the  time  of  the  expenditures;  and  she  seems  also  to  be 
entitled  to  recover  for  pecuniary  gain  she  would  have 
realized  by  virtue  of  the  marriage,  if  the  marriage  had 
taken  place  according  to  the  promise,  although  not  all  de- 
cisions are  clear  in  the  recognition  of  such  a  right.  An 
instruction  ''that  the  defendant,  in  case  of  a  breach  of 
his  promise,  was  bound  to  put  the  plaintiff  in  as  good 
condition  as  if  the  contract  had  been  performed,"  has 
been  approved ;  ^  but  a  similar  instruction  has  been  dis- 
approved as  being  too  complicated  and  conjectural.^ 
Where,  from  the  evidence,  it  appears  that  the  defendant 
would  have  been  able  to  give  the  plaintiff  a  good  home, 
the  money  value  of  the  marriage  is  enhanced,  and  the 
jury  may  consider  this  fact  in  assessing  damages.* 

160.  Loss  of  Other  Opportunities  to  Marry. — In  assess- 
ing damages,  the  jury  may  take  into  consideration  the 

this,  there  can  be  no  hard  and  3 — Mabin  v.  Webster,  (1891)  129 
fast  rule  of  damages,  and  that  they  Ind.  430,  28  N.  E.  863,  28  Am.  St. 
must  be  left  to  the  discretion  of  Rep.  199;  Lawrence  v.  Cooke, 
the  jury.  Of  course,  that  discre-  (1868)  56  Me.  187,  96  Am.  Dee. 
tion  is  not  so  absolute  as  to  be  in-  443.  The  former  case  says:  "She 
dependent  of  a  consideration  of  has  the  right  to  recover  what 
the  evidence.  It  is  one  which  is  would  put  her  in  as  good  a  con- 
to  be  exercised  with  regard  to  all  dition  pecuniarily  as  she  would 
the  circumstances  of  the  particu-  have  been  in  if  the  contract  to 
lar  case,  and,  as  it  has  frequently  marry  had  been  fulfilled." 
been  said,  where  the  verdict  has  3 — Miller  v.  Rosier,  (1875)  31 
not   been  influenced  by  prejudice,  Mich.  475. 

passion,  or  corruption,  the  verdict  4 — Jacoby  v.  Stark,    (1903)    205 

will    nort     be     disturbed    by     the  HI.    34,   68   N.   E.   557;    Chellis   v. 

court."       See     also     Morgan     v.  Chapman,    (1891)    125   N.   Y.    214, 

Muench,  (la.  1916)  156  N.  W.  819;  26  N.  E.  308,  11  L.  R.  A.  784. 
Grant  v.  Willey,  (1869)  101  Mass. 
356;  Osmun  v.  Winters,  (1894)   25 
Ore.  260,  35  Pac.  250. 


284  LAW  OF  DAMAGES 

plaintiff's  loss  of  opportunity  during  her  engagement 
to  contract  a  suitable  marriage  with  another.^  The  injury 
to  the  plaintiff's  general  future  prospects  of  marriage 
may  also  be  allowed  for  as  an  element  of  damage.®  But, 
w^here  the  plaintiff  has  broken  her  existing  promise  to 
marry  another  man,  at  the  solicitation  of  the  defendant, 
and  promised  to  marry  him,  the  loss  of  the  opportunity 
to  marry  her  jilted  lover  cannot  be  considered  in  assess- 
ing damages  for  the  defendant's  breach  of  his  promise  J 
In  such  a  case,  the  efficient  cause  of  the  plaintiff's  loss  is 
her  own  wrongful  act  in  breaking  the  first  engagement. 

161.  Injury  to  Plaintiff's  Health. — Where  the  plain- 
tiff's health  is  injured  by  the  defendant's  refusal  to  per- 
form the  contract  to  marry,  the  jury  may  consider  such 
injury,  in  assessing  damages,^  and  it  is  even  held  that 
it  is  not  necessary  to  plead  specially  this  injury  to  health 
as  an  item  of  damage,^  although  such  a  holding  seems 
hardly  grounded  in  sound  principle.  It  would  seem  at 
least  questionable  whether  injury  to  health  is  so  usual 
a  consequence  of  such  a  breach  as  to  warrant  the  assess- 
ment of  damages  therefor  without  the  plaintiff's  specially 
pleading  it. 

162.  Mental  Suffering  proximately  resulting  from  the 
defendant's  breach  of  promise  may  be  recovered  for 

5 — Hively  v.  Golnick,  (1913)  125  pccts  in  life,"  which  would  doubt- 
Minn.  49S,  144  N.  W.  213,  49  L,  less  include  prospects  of  marriage. 
E.  A,  (N.  S.)  757,  Ann.  Gas.  1915  A  7— Hahn  v.  Bettingen,  supra; 
295.  Trammell   v.  Vaughan,   (1900)   158 

6 — Goddard  v.  Westcott,    (1890)  Mo.  214,  59  S.  W.  79,  51  L.  R.  A. 

82  Mich.  180,  46  N.  W.  242.    Some-  854,  81  Am.  St.  Rep.  302. 

times,    as    in    Hahn    v.    Bettingen,  8 — Hively  v.  Golnick,  (1913)  123 

(1900)  81  Minn.  91,  83  N.  W.  467,  Minn.   498,  144  N.  W.   213,  49  L. 

50  L.  R,  A.  669,  it  is  not  squarely  R.  A.  (N.  S.)  757,  Ann.  Cas,  1915  A 

stated   that   the   plaintiff   may   re-  295. 

cover  for  loss  of  future  prospects  9 — ^Hively  v.  Golnick,  supra;  Duff 

of    marriage,   but    it    is    said    that  v.   Judson,    (1910)    160   Mich.   386, 

among  the  elements  of  compensa-  125  N.  W.  371, 
tion  is  "the  marring  of  her  prog- 


BREACH  OF  PROMISE  285 

here,^^  just  as  if  the  breach  were  a  tort.  Wounded  feel- 
ings, mortification,  and  pain,  are  such  normal,  probable 
and  proximate  consequences  of  a  breach  of  promise  to 
marry,  that  they  are  very  proper  elements  of  compen- 
sation." 

163.  Injury  to  the  Plaintiff's  Affections. — Another  ele- 
ment of  damage  commonly  allowed  for  is  injury  to  the 
plaintiff's  affections. ^^  Perhaps  this  might  correctly  be 
classified  as  a  kind  of  mental  suffering,  but  it  is  so  often 
mentioned  separately  that  it  is,  in  itself,  of  considerable 
importance.  If  there  is  not,  logically,  any  distinction 
between  injury  to  the  affections  and  an  injury  to  any 
other  mental  attribute  or  condition,  still  such  an  injury  is 
accorded  a  prominent  and  distinct  place.  Since  it  is 
proper  to  consider  injury  to  the  plaintiff's  affections,  it 
follows  that  it  is  permissible  to  show  the  depth  ^^  or 
lack  ^*  of  such  affections,  in  order  to  increase  or  diminish 
the  damages.  For  the  purpose  of  showing  the  plaintiff's 
sincere  attachment  to  and  affection  for  the  defendant,  it 
is  proper  to  offer  testimony  that  the  plaintiff  appeared 
to  be  so  attached,^ ^  or  that  the  plaintiff,  before  the  breach, 
did  some  act  indicating  attachment,  such  as  abandoning 
her  own  church  and  joining  that  of  the  defendant  at  his 

10 — Berry    v.    Da    Casta,    (1866)  borne  him  twa  children,  was  held 

L.  R.  1  C.  P.  331;  Coolidge  v.  Neat,  admissible  to   show  the  plaintiff's 

(1880)   129  Mass.  146.  affection  for  the  defendant. 

11— Grant  v.  Willey,  (1869)   101  14— Dupont  v.   McAdow,   (1886) 

Mass.  356.  6  Mont.  226,  9  Pac.  925.     But  evi- 

12 — Coolidge  v.  Neat,  (1880)  129  dence  of  the  feeling  orf  the  plain- 
Mass.    146.  tiff  toward  the  defendant  after  the 

13 — MacElree   v.   Wolfersberger,  breach  of  the  contract  is  not  ad- 

(1898)    59  Kan.    105,  52   Pac.    69;  missible,    as   it    does    not    tend    to 

Trammell  v.  Vaughan,   (1900)    158  show  the   extent   of   her   affection 

Mo.  214,  59  S.  W.  79,  51  L.  R.  A.  during    the    engagement.      Eobert- 

854,  81  Am.  St.  Rep.  302.    In  Stew-  son  v.   Graver,   (1893)    88  la.   381, 

art    V.    Anderson,    (1900)    111    la.  55  N.  W.  492. 

329,  82  N.  W.   770,  evidence  that  15— Sprague  v.  Craig,  (1869)  51 

the  plaintiff  had  been  three  times  HI.  288, 
engaged  to  the  defendant  and  had 


286  LAW  OF  DAMAGES 

request.^^  In  order  to  show  an  absence  of  injury  to  the 
plaintiif' s  affections,  the  defendant  may  properly  show 
facts  and  circmnstances  indicating  the  plaintiff's  lack  of 
affection  for  him.^^ 

164.  Remote  Damage. — The  usual  rule  that  only  the 
proximate  results  of  a  wrong  are  regarded  in  the  assess- 
ment of  damages,  applies  here  as  elsewhere.  Some 
courts,  however,  go  a  long  way  in  sustaining  the  award 
of  damages  for  consequential  losses  which  would  not 
commonly  result  from  a  breach  of  promise,  but  which 
seem  to  be  natural  and  probable  consequences  which 
should  have  been  foreseen  by  the  defendant,  in  the  par- 
ticular case.  Some  of  these  cases,  at  first  glance,  seem 
extreme;  but  they  appear  a  little  more  plausible  upon 
careful  consideration  of  all  the  circumstances  involved  in 
them.  Probably  the  strangest  of  such  cases  reported  is 
Duff  V.  Judson,^^  allowing  the  plaintiff,  in  an  action  for 
breach  of  promise,  to  recover  for  the  loss  of  her  arm; 
but  the  correctness  and  splendid  justice  of  the  decision, 
under  all  the  peculiar  and  unusual  circumstances  of  the 
case,  seem  almost  compelling;  especially  in  view  of  the 
fact  that  the  evidence  showed  that  the  casting  off  of  the 
plaintiff  by  the  defendant,  under  all  the  circumstances, 
might  have  caused  the  loss  of  her  arm,  and  that  there  was 
some  evidence  tending  to  show  that  it  actually  did  cause 
it. 

165.  Ag^gravation. — Many  kinds  of  acts  and  circum- 
stances connected  with  the  breach  may  be  considered  by 
the  jury  in  aggravation  of  damages,  or,  as  some  cases 
put  it,  in  justification  of  the  assessment  of  exemplary 
damages.^'*    This  aggravation  or  increase  of  damages  is 

16 — ^McElree    v.    Wolferaberger,  19 — See    Sedg.    Dam.    (9th    ed.) 

eupra.  §  639;     Morgan    v.    Muench,     (la. 

17— Dupont  V.  McAdow,  supra,  1916)  156  N.  W.  819.    In  Chamber- 

18— (1910)  160  Mich.  386,  125  N.  lain    v.    Williamson,    (1814)    2    M. 

W.  371.  &  S.  408,  105  Eng.  Eepr.  433,  Le- 


BREACH  OF  PROMISE  287 

grounded  sometimes  upon  one,  sometimes  upon  the  other, 
sometimes  upon  both,  of  two  theories :  first,  that  circum- 
stances aggravating  a  breach  merely  show  malice;  or 
second,  that  such  circumstances  increase  the  mental  an- 
guish of  the  plaintiff.  Punishment,  and  not  compensa- 
tion, has  been  held  to  be  the  purpose  of  increased  dam- 
ages assessed  because  of  aggravating  circumstances  ac- 
companying the  breach,  although  the  courts  that  ground 
the  assessment  of  exemplary  damages  upon  the  fact  that 
the  mental  anguish  of  the  plaintiff  is  increased  by  the 
wantonness  or  malice  of  the  defendant,  really  are  stating 
an  argument  more  plausible  for  increasing  the  compen- 
satory damages  than  for  assessing  punitive  damages.^^ 
This  is,  however,  probably  in  part  a  result  of  mere  loose 
use  of  language  and  in  part  a  result  of  the  strange  theory 
existing  in  some  states,  in  regard  to  all  kinds  of  cases 
of  exemplary  damages,  that  they  are  assessed  as  com- 
pensation for  mental  suffering. 

Among  the  things  held  to  aggravate  damages  for 
breach  of  promise  are :  seduction  under  promise  of  mar- 
riage, with  or  without  impregnation ;  pregnancy  as  a  re- 
sult of  a  seduction  under  such  promise;  slanderous  or 
libelous  statements  by  the  defendant  in  regard  to  the 
plaintiff  in  his  defense  of  the  action ;  the  manner  in  which 
the  defendant  committed  the  breach;  the  fact  that  the 
defendant  made  his  promise  without  intending  to  per- 
form; and  the  defendant's  cruel,  wanton,  and  insulting 
conduct  toward  the  plaintiff  in  connection  with  the  breach. 

Wliere  the  plaintiff  is  seduced  by  the  defendant  in  con- 
sequence of  a  marriage  promise  existing  between  them, 
the  jury  may  take  the  seduction  into  consideration  as 

blane,   J.   said    that,   though    dam-  S.  "W.  79,  51  L.  E.  A.  854,  81  Am. 

ages    in    such    actions    are    given  St.   Rep.  302.     "If  the  defendant 

strictly  as  a  compensation,  yet  they  entered  his  suit  in  maJice,  and  not 

are    almost    always    considered    by  in  love,  this  aggravated  the  plain- 

the  jury  somewhat  in  poenam.  tiff's  damages,  and  she  is  entitled 

20    —   But      see      Trammell      v.  to   recorver   compensation   therefor, 

Vaughan,    (1900)    158  Mo.   214,  59  but  not  punitive  damages." 


288  LAW  OF  DAMAGES 

aggravating  the  damage.^i  g^j-  ^y^q  seduction  must  be  a 
real  one  and  by  reason  of  the  promise ;  ^2  it  must  not  be 
mere  willing  sexual  intercourse  not  resulting  from  the 
promise  of  marriage.  Whether  such  intercourse  be  be- 
fore or  after  the  promise,  it  does  not  aggravate  damages 
for  the  breach  of  promise,  if  it  was  merely  the  result  of 
the  plaintiff's  inclination,  passion,  or  cupidity.  **If  it  ap- 
pear that  a  woman  has  willingly  associated  herself  in  the 
sexual  act  with  a  man  other  than  her  husband,  in  a  man- 
ner and  by  conduct  which  excludes  the  existence  of  any 
other  barrier  of  virtue  or  chastity  of  character  needing 
to  be  overcome  by  seductive  arts,  and  that  she  continued 
such  intercourse  at  short  intervals  without  suggestion  of 
any  repentance  or  reformation  or  other  break  in  its  con- 
tinuity, the  mere  fact  that  in  the  course  thereof,  and  after 
the  illicit  relations  are  established,  there  intervenes  a 
promise  of  marriage  cannot  support  a  finding  that  the 
seduction  has  been  accomplished  by  such  promise,  al- 
though she  may  testify  that  she  continued  the  libidinous 
relation  by  reason  of  it."  ^^ 

In  a  case  involving  aggravation  of  the  breach  by  se- 
duction, loss  of  virtue,  shame,  and  mental  anguish,  are 
elements  proper  to  be  considered  in  determining  the  dam- 
ages, they  being  proximate  results  of  the  seduction,  which 
is  a  mere  incident  of  the  breach.^* 

Where  the  plaintiff  makes  no  charge,  in  either  pleading 
or  evidence,  that  the  defendant  seduced  her,  seduction 

21 — Fidler  v.  McKinley,    (1859)  same  court  has,  however,  held  that 

21    ni.    308;    Tubbs   v,   VanKleek,  acts    of    sexual   intercourse,    often 

(1851)    12  m.  446;   Poehiraann   v.  permitted   by  plaintiff  in   reliance 

Kertz,    (1903)    204  111.   418,  68  N.  upon  defendant's  promise  of  mar- 

E.  467;  Whalen  v.  Layman,  (1828)  riage,  are  proper  to  consider  in  ag- 

2  Blackf.  (Ind.)   194.  gravation  of  damages.     Falkner  v. 

22— Espy    V.    Jones,     (1861)     37  Shultz,    (1915)    160  Wis.    594,   150 

Ala.  379.  N.  W.  424. 

23— Salehert    v.    Reinig,    (1908)  24— Davis  v.  Padgett,  (1915)  117 

135  Wis.  194,  115  N.  W.  132.     The  Ark.  544,  176  S.  W.  333. 


BREACH  OF  PROMISE  289 

cannot,  of  course,  be  considered  by  the  jury  in  assessing 
the  damages.^^ 

Where  the  defendant  has,  by  means  of  the  engagement, 
seduced  the  plaintiff,  and  she  has  by  reason  thereof,  be- 
come pregnant,  her  pregnancy  and  the  resulting  birth  of 
an  illegitimate  child  may  be  considered  in  assessing  dam- 
ages. The  plaintiff  cannot  recover  compensation  for  the 
maintenance  of  the  child  in  this  type  of  action,  but  it  has 
been  held  that  the  jury  may  consider  the  condition  in 
which  the  plaintiff  is  left  by  the  defendant's  breach,  in- 
cluding her  obligation  to  support  her  bastard  child.^*' 
Damages  can  be  assessed  on  account  of  the  plaintiff's 
mortification  or  shame,  caused  by  the  fact  that  she  is 
the  mother  of  a  bastard  child,  the  result  of  the  seduction 
under  promise  of  marriage.^''^ 

Slanderous  or  libelous  remarks  in  regard  to  the  plain- 
tiff by  the  defendant  in  connection  with  the  breach  may 
be  considered  as  showing  the  malice  of  the  defendant 
and  as  therefore  justifying  the  assessment  of  larger  dam- 
ages.^^  Where  the  defendant,  in  bad  faith,  knowing  that 
he  cannot  prove  his  allegations,  or  having  no  reason  to 
believe  that  he  can  prove  them,  pleads  or  tries  to  prove 
the  bad  character  of  the  plaintiff  particularly  her  lack 
of  chastity,  this  is  a  matter  proper  to  be  considered  by 

25 — A  case  in  point,  based  upon  that   reason   made   the   assessment 

unusual  facts,  is  Broyhill  v.  Nor-  of  damages  more  heavy  than  they 

ton,  (1903)   175  Mo.  190,  74  S.  W.  otherwise    would    have    done,     he 

-1024.     "The   verdict   was  for  the  alone  conveyed  that  idea  to  them, 

plaintiff  for  $26,000.     We  have  no  The  plaintiff  made  no  such  charge, 

doubt  that  the  conduct  of  the  de-  and  denied  the  fact."     The  court 

fendant  on  the  trial,  and  the  char-  then  proceeds  to  hold,  very  prop- 

acter  of  his  testimony,  were  chief-  erly,   that   seduction   could   not  be 

ly  the  cause  of  this  large  award.  considered  by  the  jury  as  an  ele- 

His   speech   was   flippant  in   style,  ment  of  damage  in  this  case, 

and  abounded  in  indecent  insinua-  26 — Welge  v.  Jenkins,  (Tex.  Civ. 

tions.     His  innuendo  that  he  was  App.  1917)   195  S.  W.  272. 

criminally  intimate  with  the  plain-  27 — Id. 

tiff  was   altogether  voluntary.     If  28 — Roberts  v.  Druillard,   (1900) 

the  jury  obtained  the  idea  that  he  123  Mich.  286,  82  N.  W.  49. 
had  seduced  the  plaintiff,  and  for 
Bauer  Dam. — 19 


290  LAW  OF  DAMAGES     . 

the  jury  in  aggravation  of  damages.  It  is  usually  held 
that  an  attempt,  made  in  good  faith,  to  prove  the  plain- 
tiff's lack  of  chastity,  does  not  aggravate  damages.  **If 
he  makes  the  attempt  to  establish  such  facts,  in  good  faith, 
under  circumstances  which  induce  him  to  believe  that 
he  can  make  the  proof,  and  fails,  he  does  not  by  that 
failure,  subject  himself  to  additional  damages.  But  when 
the  attack  is  wanton,  or  dictated  by  malice  and  only  to 
further  blacken  the  character  of  the  plaintiff,  and  the  at- 
tempt is  not  in  good  faith;  it  is  a  wrong  that  may  be 
considered  by  the  jury  as  an  aggravation  of  damages."  ^^ 
Slander  or  libel  cannot,  however,  be  recovered  for  as  a 
substantial  element  of  damages  in  a  breach  of  promise 
case,  it  being  merely  a  matter  to  consider  as  evidence  of 
the  defendant's  malice  and  therefore  constituting  aggra- 
vation of  damages  or  ground  for  the  assessment  of  ex- 
emplary damages.^®  The  defendant's  attorney  may,  in 
argument,  attack  the  character  of  the  plaintiff,  by  im- 
properly commenting  upon  the  evidence,  without  subject- 
ing his  client  to  the  aggravation  of  damages.  If  the  ar- 
gument of  the  attorney  is  improper,  it  is  the  duty  of  the 

29 — Fidler   v.  McKinley,    (1859)  upon  in  an  action  for  defamation. 

21  111,  308;  Luther  v.  Shaw,  (1914)  It    has   been    said    that    the    testi- 

157  Wis.  231,  147  N.  W.  17.  mony  was   admissible,  but  it   was 

30 — Roberts  v.  Druillard,  (1900)  ornly  for  the  purpose  of  showing  a 

123    Mich.   286,    82   N.   W.   49,   in  bad  motive,  by  way  of  aggravation 

disapproving    an    instruction    that  of  damages,  just  as  willfulness  and 

the  jury  might,  "in  the   exercise  malice  may  be  shovra  in  a  case  of 

of  a  sound  and  reasonable  discre-  tort,  to  which  this  class  of  cases 

tion,    awtard    her   such   additional  are  by  the   authorities   cited   said 

damages  as  in  your  judgment  she  to  be  analogous  in  some  respects, 

has  suffered  by  reason  of  the  false  The   proof   of   these   slanders   was 

and  slanderous  statements  so  made  admissible,     not     as     substantive 

by  the   defendant,"  says:    "This  causes   of  action,  but  as   explana- 

language  was  broad  enough  to  lead  tory  of  the  act  of  the  defendant 

the  jury  to  understand  that  they  in  breaking  the  contract,  just  as  a 

could  award  full  damages  for  these  libel  not  declared  upon  is  admissi- 

slanders    to    the    same    extent    as  ble    to    explain    the    animus    of    a 

would   have   been   permissible   had  defendant   in   publishing   the   libel 

the  various  slanders  been  counted  countod  upon  in  an  action  for  defa- 


BREACH  OF  PROMISE  291 

trial  judge  to  stop  him;  such  a  duty  is  not  incumbent 
upon  his  client.^^ 

Where  the  defendant,  in  his  pleadings,  unsustained  by 
evidence,  charges  the  plaintiff  with  having  had  no  affec- 
tion for  him,  but  with  entertaining  a  purpose  to  procure 
money  from  him  on  the  pretense  of  his  promise  to  marry 
her,  and  his  breach  thereof,  it  has  been  held,  without  any 
mention  of  aggravation  in  terms,  that  this  is  an  element 
which  may  properly  be  considered  by  the  jury  in  deter- 
mining the  amount  of  damages. ^^ 

The  fact  that  the  defendant  has  abruptly  broken  the 
engagement  at  the  very  time  set  for  the  marriage,  thus 
causing  the  plaintiff  to  be  humiliated  by  being  left  "wait- 
ing at  the  church"  in  the  presence  of  her  friends,  is  a 
circumstance  to  be  considered  in  aggravation.^' 

The  length  of  time  between  the  making  of  the  engage- 
ment and  the  breach  is  a  matter  for  the  consideration  of 
the  jury  in  fixing  damages.  If  the  engagement  has  con- 
tinued for  many  years,  the  damage  caused  by  the  promise 
and  its  breach  may  be  much  greater  than  in  the  case 
wherein  the  engagement  has  continued  for  only  a  few 
days  or  a  few  months.  In  the  case  of  a  long  engagement, 
the  plaintiff  may,  in  reliance  upon  the  defendant's  prom- 
ise, have  passed  from  girlhood  to  aged  spinsterhood,  re- 
jecting all  suitors'  attentions  as  the  years  went  by.  As 
has  been  well  said  in  regard  to  the  length  of  the  engage- 
ment, *4t  might  be  very  material  in  its  effect  upon  the 
plaintiff's  condition  and  prospects,  and  might  under  some 

mation.      An    examination    of    the  allowed,   not   only   full   compensa- 

authorities     wll     shor\v     this.       In  tion  (i.  e.,  for  the  breach  of  prom- 

those  jurisdictions  where  punitory  ise,  not  slander),   but  by  way   orf 

damages    are    permitted,   the    rule  punishment." 

is  that  these  slanders  may  be  showTi  31 — Pearee  v.  Stace,   (1913)   207 

as   a  basis   for   them.     Sutherland  N.  Y.  506,  101  N.  E.  434. 

says,  in  his  work  on  Damages  (sec-  32 — Chellis   v.   Chapman,    (1891) 

tion   987),  that    circumstances   are  125  N.  Y.  214,  26  N.  E.  308,  11  L. 

admissible  to  show  wantonness  and  R.  A.  784. 

mthlessnpp?,  and  that  she  may  be  3.3 — Chellis  v.  Chapman,  supra. 


292  LAW  OF  DAMAGES 

circumstances  be  a  decided  aggravation  of  her  injury."  ^* 
The  length  of  the  engagement  is  very  material. 

166.  Mitigation. — Just  as  it  is  proper  to  admit  testi- 
mony to  aggravate  or  increase  the  damages  consequent 
upon  the  breach,  so  it  is  proper  to  permit  proof  of  those 
facts  which  tend  to  mitigate  or  lessen  them.  In  mitiga- 
tion of  damages,  those  facts  and  circumstances  may  be 
shown  which  tend  to  diminish  the  plaintiff's  loss  by  rea- 
son of  the  breach,  and  also  those  which  indicate  a  lack 
of  malice  on  the  part  of  the  defendant. 

Probably  the  ground  most  frequently  relied  upon  in 
mitigation  is  the  bad  character  or  unchaste  conduct  of 
the  plaintiff,  which,  if  shown,  clearly  mitigates  the  dam- 
ages. If  the  plaintiff  is  an  unchaste  woman,  she  is  not 
so  deeply  wronged  by  a  breach  of  promise  of  marriage 
as  is  a  woman  who  is  chaste  and  pure.  If  she  is  unchaste, 
her  sense  of  humiliation  and  her  loss  of  character  and 
reputation  because  of  the  loss  of  the  marriage,  are  likely 
to  be  less.^^  But  ** where,  after  a  promise  of  marriage,  a 
woman  is  seduced  and  deserted  by  her  lover,  in  conse- 
quence of  which  she  acquires  a  bad  character,  he  shall 
not  be  permitted  to  avail  himself  of  that  character,  in 
mitigation  of  damages,  in  an  action  brought  by  her  for 
the  injury  resulting  from  his  breach  of  promise  to  marry 
her."3« 

The  general  rule  as  to  the  effect  of  the  proof  of  the 
unchastity  of  the  plaintiff,  has  been  stated  as  follows: 
* '  1.  That  if  the  woman  was  of  bad  character  at  the  time 
of  the  contract,  and  that  was  unknown  to  the  defendant, 
the  verdict  ought  to  be  in  his  favor.  2.  That  if  the  plain- 
tiff, after  the  promise,  had  prostituted  her  person  to  any 
person  other  than  the  defendant,  she  thereby  discharged 
the  defendant.     3.  That  if  her  conduct  was  improperly 

34_Grant  v.  Willey,  (1869)  101  36— Boynton   v.  Kellogg.   (1807^ 

Mass.  356.  3  Mass.  189, 

35— Young   V.    Corrigan,    (1912) 
208  Fed.  431, 


BREACH  OF  PROMISE  293 

indelicate,  although  not  criminal,  before  the  promise,  and 
it  was  unknown  to  the  defendant,  it  ought  to  be  considered 
in  mitigation  of  damages.  4.  That  if  such  was  her  con- 
duct after  the  promise,  it  was  proper,  in  the  same  view, 
for  the  consideration  of  the  jury."^'^  It  might  further 
be  said  that  if  the  plaintiff  was  unchaste  at  the  time  of 
the  promise  and  defendant  knew  she  was  unchaste,  such 
unchastity,  even  then,  could  be  considered  in  mitigation 
of  damages,^ ^  as  the  injury  to  the  feelings  of  the  unchaste 
woman  here  is  less  than  to  a  chaste  and  upright  woman 
under  similar  circumstances;  but  there  are  authorities 
contra.^^ 

But  the  fact  that  there  was  illicit  intercourse  between 
the  plaintiff  and  the  defendant  before  the  promise  as  well 
as  afterward,  cannot  be  taken  to  mitigate  the  damages. 
* '  It  is  generally  held  that  the  criminal  misconduct  of  the 
plaintiff,  known  to  the  defendant  before  he  made  the 
promise,  and  encouraged  and  participated  in  by  him, 
cannot  be  used  in  mitigation  of  the  damages."  *•* 

If  the  plaintiff  is  guilty  of  habitual  drunkenness  or  of 

37 — ^Boynton   v.   Kellogg,   supra;  implicated    in    this    matter.      She 

quoted  with  appraval  in  Butler  v,  lived  and  cohabited  with  the   de- 

Eschelman,   (1856)    18  111.  44.  fendant  as  his  mistress,  for  money, 

38 — Denslow      v.      Van      Horn,  at    so   much    per   month,    and    the 

(1864)   16  la.  476.  evidence    fails    to    show    that    her 

39 — Espy  V.  Jones,  (1861)  37  Ala.  affections    have    been    wounded   in 

379;    Butler    v,    Eschelman,    supra.  the  least  degree  by  his  failure  to 

40 — Fleetford  v.  Barnett,  (1898)  marry  her;   so   that   injury  to   her 

11  Colo.  App.  77,  52  Pac.  293,  cit-  affections  could  not  properly  have 

ing  Espy  v.  Jones,  supra;  Butler  v.  been  considered  by  the  jury  in  esti- 

Eschelmau,  (1856)  18  111.  44;  Boryn-  mating   the    damages."      The    Du- 

ton  V.  Kellogg,  (1807)  3  Mass.  189;  pont    case    can    hardly   be    consid- 

Colburn     v.     Marble,     (1907)     196  ered  as  being  contra  to  the  general 

Mass.  376,   82  N.  E.  28,   124  Am.  rule;  the  peculiar  facts  in  the  case, 

St,  Eep.  561;   Daggett  v.  Wallace,  including   the  important   fact   that 

(1889)    75  Tex.  352,  13   S.  W.  49,  the  plaintiff  was  a  mere  paid  mis- 

16  Am.  St.  Rep.  908;    But  see  Du-  tress,  make  a  different  case  from 

pont  V.  McAdow,    (1886)    6  Mont.  that    in    which    there    haiS    merely 

226,  9  Pac.  925,  as  follows:     "The  been  illicit  intercourse  consequent 

record  does  not  show  that  the  plain-  upou  the  engagement, 
tiff's  affections  were  in  any  way 


294  LAW  OF  DAMAGES 

other  misconduct  tending  to  show  that  she  is  unfit  to  enter 
the  marriage  relation  with  the  defendant,  that  fact  may 
be  considered  in  mitigation  of  damages.*^  It  has  been 
held  that  the  licentious  conduct  of  the  plaintiff,  after  the 
breach,  may  be  considered  in  mitigation  of  damages. 
This  is  on  the  ground  that  an  action  for  breach  of  promise 
is  in  part  for  a  loss  of  reputation,  and  that  such  reputa- 
tion must  depend  upon  the  plaintiff's  general  conduct 
after,  as  well  as  before,  the  breach.  **The  proof  of  repu- 
tation cannot  depend  on  time;  it  is  a  question  which  is 
general  in  its  nature,  and  the  inquiry  respecting  it,  where 
material,  must  be  general. ' '  ^^ 

The  strange  but  important  question  has  been  raised, 
whether,  in  the  case  of  a  breach  of  promise,  aggravated 
by  seduction,  the  damages  would  be  mitigated  by  the  fact 
that,  after  the  breach,  the  plaintiff  sought  out  the  de- 
fendant and  shot  him.  Without  any  statement  of  reasons 
for  the  holding,  it  is  said  that  evidence  of  such  shooting 
is  not  admissible  in  mitigation  of  damages.^^  Probably 
the  reason  is  that  the  shooting  constitutes  a  cause  of 
action  wholly  separate  and  distinct  from  the  engagement 
and  its  breach. 

The  existence  of  a  promise  on  the  part  of  the  defendant 
to  marry  a  third  person,  neither  bars  the  action  nor  miti- 
gates damages ;  ^^  nor  would  the  marriage  of  the  defend- 
ant to  a  third  person  have  such  an  effect,  on  principle, 
although  it  seems  to  have  been  accorded  some  weight  as 
a  circumstance  affecting  the  reasonableness  of  a  large 
award.*' 

41— Button  V.  McCauley,  (1867)  44— Roper  v.  Clay,  (1853)  18  Mo. 

1  Abb.  Dec.  282,  5  Abb.  Prac.  (N.  383,  59  Am.   Dec.  314. 

S.)    29.  45 — "The  defendant  is  now  mar- 

42 — Johnson  v.  Caulkins,   (1799)  ried,  and  to  give  considerably  more 

1  Johns.   (N.  Y.)   116,  1  Am.  Dec.  than  half  of  his  property  as  dam- 

102;    followed    in    PaJmer    v.    An-  ages  upon  the  facts  appearing  here, 

drews,  (1831)  7  Wend.  (N.  Y.)  142.  even  if  there  had  been  no  express 

43 — Schmidt  v.  Durnham,  (1891)  release,  we   regard   as  out   of   the 

46  Minn.  227,  49  N.  W.  126.  bounds  of  reason.  "—Kellett  v.  Ro- 


BREACH  OF  PROMISE  295 

The  bad  health  of  the  defendant  is  also  a  fact  to  be 
considered  in  mitigation,  and  is  often  a  matter  of  first 
importance ;  since  this  would  have  been  likely  to  diminish 
the  period  of  the  marriage  and  to  render  the  married 
state,  during  its  existence,  less  advantageous  to  the  plain- 
tiff.-^« 

Opposition  to  the  marriage  by  a  parent  of  one  of  the 
parties  may  be  shown  in  mitigation  of  damages.  Such 
opposition  sometimes  affords  a  reasonable,  although  not 
legally  adequate,  cause  for  not  carrying  out  the  contract ; 
and,  since  it  tends  to  show  that  the  breach  was  not  wan- 
ton, it  may  properly  be  shown  in  mitigation,  preventing 
the  assessment  of  exemplary  damages.^'^  Where  an  aged 
man  breaks  his  promise  to  marry,  owing  partly  to  the 
opposition  of  his  daughter,  such  opposition  has  at  least 
inferentially  been  held  to  be  such  a  mitigating  circum- 
stance as  to  prevent  the  assessment  of  aggravated  or 
exemplary  damages.*® 

Where  the  defendant  has  broken  his  promise  because 
of  a  change  of  circumstances,  which  do  not  legally  justify 
the  breach,  but  which  negative  the  whole  idea  of  a  cruel 
and  wanton  abandonment,  and  where  he  further  takes 
care,  even  in  the  breach,  not  to  injure  needlessly  the  feel- 
ings and  reputation  of  the  plaintiff,  such  reason  and  man- 
ner of  his  conduct  may  properly  be  shown  in  mitigation, 
or,  more  properly  speaking,  in  prevention  of  the  assess- 
ment of  exemplary  damages.*^ 

The  mere  fact  that  the  plaintiff  has,  since  the  defend- 
ant's breach,  succeeded  in  finding  a  husband,  does  not  so 
mitigate  her  damages  as  to  render  her  case  one  for 

bie,  (1S98)   99  Wis.  303,  74  N.  W.  47— JTohnson   v.   Jenkins,    (1862) 

781.  24  N.  Y.  252. 

46  —  Parsons     v.     Trowbridge,  48 — Goddard  v.  Westcott,  (1890) 

(1915)    226  Fed.  15,   140   C.   C.  A.  82  Mich.  180,  46  N.  W.  242. 

310;    Sprague  v.   Craig,    (1869)    51  49 — Johnson  v.  Jenkins,  supra. 
111.  28S;  Mabin  v.  Webster,  (1891) 
129  Tnd.  430,  28  N.  E,  863,  28  Am. 
St.  Rep.  199. 


296  LAW  OF  DAIMAGES 

nominal  damages  only.  Even  in  sneh  a  case,  she  may 
already  have  been  materially  injured  by  the  breach,  and 
so  may  recover  substantial  damages.  This  is  so,  even 
if  the  marriage  she  has  contracted  is  as  happy  or  more 
so  than  a  marriage  with  the  defendant  would  have  been.^** 

The  plaintiff's  damages  are  not  mitigated  by  the  fact 
that  her  father  has  recovered  for  her  seduction,  as  her 
father *s  action  is  not  her  action;  and  what  has  been  done 
in  his  action  is  res  inter  alios  acta  and  incapable  of  work- 
ing prejudice  to  a  person  not  a  party  or  privy  to  the 
record.^^ 

As  has  already  been  seen,  the  plaintiff's  depth  or  lack 
of  affection  is  to  be  considered  in  assessing  damages.  It 
frequently  happens  that  a  jilted  woman,  after  the  breach, 
makes  declarations  that  she,  at  no  time  during  the  en- 
gagement, cared  anything  for  her  affianced  lover,  and 
that  all  she  wanted  was  his  money.  Such  declarations 
are  admissible  in  evidence  in  mitigation  of  damages,  as  it 
is  clear  that  a  person  feeling  no  affection  for  the  person 
to  whom  she  is  affianced,  will  be  injured  little  or  none  by 
a  breach  of  promise.^^  Likewise,  declarations  of  the 
plaintiff  that  she  only  proposed  to  marry  the  defendant 
to  spite  his  family,  that  she  had  refused  to  live  at  his 
house,  and  did  not  propose  to  marry  him  to  live  in  any 
residence  he  had  or  place  where  he  was  living,  are  ad- 
missible in  mitigation  of  damages.  Such  declarations 
tend  to  mitigate  damages,  whether  made  before  or  after 
the  breach,  if  they  refer  to  the  plaintiff's  state  of  mind 
before  the  breach.^^ 

An  offer  by  the  defendant  to  marry  the  plaintiff,  after 

50— Fisher  v.  Barber,  (1910)  62  v.   George,    (1868)    100   Mass.   331, 

Tex.  Civ.  App.  34,  130  S.  W.  871.  goes    so   far   as    to   hold   that    the 

51 — Coryell  v.   Colbaugh,   (1791)  plaintiff's     admissions     after     the 

1  N.  J.  Law  77,  1  Am.  Dec.  192,  breach,  as  to  her  then  present  feel- 

52 — Robertson  v.  Graver,   (1893)  ings,    were    admissible    as    having 

88  la.  381,  55  N.  W.   492;   Miller  some  tendency  to   show  what  her 

V.  Rosier,  (1875)  31  Mich.  475.  past  views  had  been. 

53 — Miller  v.  Rosier,  supra;  Hook 


BREACH  OP  PROMISE 


297 


the  breach  of  promise  but  before  suit,  may  be  considered 
in  mitigation  of  damages,^'*  and,  according  to  the  better 
view,  this  is  true,  whether  the  offer  be  made  before  or 
after  the  commencement  of  suit.^^    In  order  to  have  such 


54— Kurtz  V.  Frank,  (1881)  76 
Ind.  594,  40  Am.  Kep.  275.  In 
Kendall  v.  Dunn  (1912)  71  W.  Va. 
262,  76  S.  E.  454,  43  L.  R.  A.  (N. 
S.)  556,  it  is  said  that  the  jury- 
may  give  to  such  offer,  made  after 
breach  and  before  suit,  such  weight 
in  assessing  damages  as  they  think 
it  deserves. 

55— McCarty  v.  Heryford,  (1903) 
125  Fed.  46;  Kelly  v.  Renfro, 
(1846)  9  Ala.  325,  44  Am.  Dee. 
441;  Stacy  v.  Dolan,  (1914)  88  Vt. 
369,  92  Atl.  453.  In  the  last  men- 
tioned case  it  should  be  noted  that 
the  offer  appeared  to  be  bona  fide 
and  that  the  character  and  condi- 
tion of  the  defendant  remained 
substantially  unchanged.  Lack  of 
good  faith  eradicates  such  an  of- 
fer from  consideration  in  mitiga- 
tion; and  an  unfavorable  change 
in  the  defendant's  character  and 
condition  lessens  or  destroys  its 
value  as  a  mitigating  fact  r.  Con- 
tra, Heasley  v.  Nichols,  (1905)  38 
Wash.  485,  80  Pac.  769.  Bennett 
V.  Beam,  (1880)  42  Mich.  346,  4 
N.  W.  8,  36  Am.  Rep,  442,  is  often 
cited  in  support  of  the  general 
proposition  that  defendant's  offer 
to  marry,  made  after  the  com- 
mencement of  the  action,  will  not 
mitigate  damages.  The  fol'owing 
quotation  therefrom  tends  to  show 
the  reason  for  the  rule  there  laid 
down  and  the  manner  in  which  the 
disagreeable  conduct  of  the  plain- 
tiff, in  the  particular  case,  led  the 
court  to  formulate  the  rule:  "The 
affection  which  the  plaintiff  may 
have   had   for  the   defendant   and 


under  the  influence  of  which  she 
may  even  eagerly  have  accepted 
a  matrimonial  alliance  with  him, 
may,  by  his  subsequent  conduct, 
have  been  turned  into  loathing  and 
contempt;  so  that  a  marriage 
which  at  a  certain  time  would  have 
been  to  her  one  of  the  most  de- 
sirable of  events,  would  at  a  sub- 
sequent period,  even  in  thought, 
be  repulsive.  A  supposed  virtuous 
man  of  wealth,  refinement  and  re- 
spectability, gains  the  affections  of 
a  young  lady,  and  under  a  prom- 
ise of  marriage  accomplishes  her 
ruin,  then  abandons  her,  and  en- 
ters upon  a  life  of  open  and  noto- 
rious profligacy  and  debauchery, 
and  when  sued  he  offers  to  carry 
out  his  agreement — offers  himself 
in  marriage,  when  any  woman  with 
even  a  spark  of  virtue  or  sensibil- 
ity would  shrink  from  his  polluted 
touch.  To  hold  that  the  offer  of 
such  a  skeleton  and  refusal  to  ac- 
cept could  be  considered,  even  in 
mitigation  of  damages,  would  shock 
the  sense  of  justice,  and  be  simply 
a  legal  outrage."  It  probably 
would  have  been  more  sound  to 
say  that  circumstances  such  as  de- 
fendant's falling  into  profligacy 
were  for  the  jury  to  consider  in 
deciding  how  much  or  how  little 
his  offer  would  mitigate  damages. 
When  the  facts  of  the  case  are  con- 
sidered, the  decision  is  certainly 
not  authority  for  the  broad  propo- 
sition that  an  offer  by  the  defend- 
ant to  marry,  made  after  the  be- 
ginning of  suit,  is  never  to  be 
taken  in  mitigation;   the  decision. 


298  LAW  OF  DAMAGES 

effect,  in  any  case,  the  offer  must  be  bona  fide  and  not  a 
mere  simulated  offer  of  marriage,  simply  for  the  purpose 
of  avoiding  the  legal  consequences  of  the  breach. ^°  It 
certainly  seems  clear,  on  principle,  that  the  fact  that  the 
defendant  has  offered  the  plaintiff  all  that  she  sues  to  be 
compensated  for,  should  be  considered  in  mitigation. 

167.  Evidence  of  the  Defendant's  Wealth. — As  a  gen- 
eral rule,  the  measure  of  compensation  cannot  be  affected 
by  the  wealth  or  poverty  of  the  defendant;  but,  to  this 
rule,  cases  of  breach  of  promise  of  marriage  form  a 
conspicuous  exception.  As  the  value  of  the  marriage  to 
the  plaintiff  depends  in  part  upon  the  amount  of  his 
wealth,  evidence  of  such  amount  may  properly  be  con- 
sidered by  the  jurj^  in  fixing  compensatory  damages.^''' 

Here,  as  elsewhere,  such  e^ddence  is  admissible  also 
for  the  purpose  of  determining  the  amount  of  exemplary 
damages  to  be  assessed  in  order  really  to  punish  the  de- 
fendant, if  his  breach  has  been  malicious. ^^  But  evidence 
of  the  financial  condition  of  the  defendant's  relatives  is 
not  admissible,  as  such  condition  does  not  affect  the  value 
of  the  marriage  or  the  matter  of  the  punishment  of  the 
defendant.®^ 

E'sddence  of  even  the  mere  reputation  of  the  defendant 
for  wealth  is  admissible  as  affecting  the  question  of  dam- 
ages, since  such  reputation,  in  a  measure,  determines  the 
social  standing  of  the  defendant  and  likewise  the  place  in 

is  based  upon  defendants'  change  v.  Layman,  (1902)   118  la.  590,  92 

of    condition     and     circumstances.  N.    W.    710;    Chellis    v.    Chapman, 

Kendall  v.  Dunn,  (1912)  71  W.  Va.  (1891)    125    N.   Y.    214,    26    N.   E. 

262,  76  N.  E.  454,  43  L.  E.  A.  (N.  308,  11  L.  R.  A.  784. 

S.)    556,    holds    that    an    offer    to  58 — For  general  rule,  see  Chapter 

marry,  after  bringing  of  suit,  does  XI,    "Exemplary    Damages,"    last 

not  mitigate  damages,  although  it  paragraph. 

may  mitigate  if  made  before  suit.  59 — Miller   v.   Rosier,    (1875)    31 

56 — Kelly    v,    Renfro,    (1846)    9  Mich.    475;    Spencer    v.    Simmons, 

Ala.  325,  44  Am.  Dec.  441.  (1910)    160   Mich.  292,   125  N.   W. 

57— Jacoby  v.  Stark,  (1903)   205  9,   19  Ann.   Cas.   1126. 
111.   34,    68   N.   E.   557;    Herriman 


BREACH  OF  PROMISE  299 

the  social  world  which  would  have  been  gained  by  the 
plaintiff  if  the  marriage  had  taken  place.®*^ 

The  facts  as  to  the  defendant's  wealth  are  important 
only  as  assisting  in  the  determination  of  the  amount  of 
compensatory  and  exemplary  damages ;  they  are  not  ad- 
missible for  the  purpose  of  proving  his  mere  ability  to 
pay.  A  ruling  contra  would  be  as  unjust  here  as  in  any 
other  field  of  the  law  of  damages. 

• 

168.  Excessive  Damages. — There  are  many  instances 
in  which,  in  view  of  all  the  circumstances  of  the  case, 
including  the  amount  of  wealth  of  the  defendant,  the 
judgment  is  held  excessive.  The  logical  ground  of  all 
such  holdings,  is  not  that  the  defendant  was  not  able  to 
pay  so  much,  but  rather  that  the  value  of  the  marriage 
would  not  have  been  so  great,  so  far  as  the  plaintiff  is 
concerned,  or,  if  the  case  is  one  in  which  the  question 
of  exemplary  damages  has  been  raised,  that  no  malice  was 
sho"vvn  in  the  breach  of  the  contract  or  that  the  degree  of 
malice  shown  was  insufficient  to  justify  a  verdict  so 
largely  in  excess  of  fair  compensation. 

169.  General  and  Special  Damages. — ^In  a  breach  of 

promise  action,  as  elsewhere,  only  general  damages  can 
be  recovered,  unless  special  damages  are  grounded  on 
pleading  and  proof.^^  For  an  injurious  result  which  is 
not  implied  by  law  from  the  mere  statement  of  the  prom- 
ise and  its  breach,  a  recovery  cannot  be  based  upon  plead- 
ings setting  forth  only  such  a  general  statement,  even  if 
the  result  is  proximate.  Injury  to  the  health  of  the  plain- 
tiff ;  ^2  seduction,  without  pregnancy ;  seduction,  with 
pregnancy;  the  birth  of  an  illegitimate  child,  resulting 

60— Chellis   v.   Chapman,    (1891)  62— Bedell  v.  Powell,   (1852)    13 

125  N.  Y.  214,  26  N.  E.  308,  11  L.      Barb.    (N.  Y.)    183. 
R.  A.  784. 

61— Tyler   v.    Salley,    (1889)    82 
Me.  128,  19  Atl.  107. 


Sob  LAW  OF  DAMAGES 

from  such  seduction,  and  also  the  accompanying  humilia- 
tion; and  reasonable  expenditures  in  preparing  for  the 
marriage;  are  all,  in  varying  combinations  and  degrees 
in  different  cases,  proximate  results  of  the  contract  and 
its  breach;  but  they  must  be  pleaded  and  proved,  since, 
though  proximate,  they  are  not  necessary  results  or  the 
results  which  a  court  can  regard  as  implied  by  the  setting 
up  of  a  breach  of  promise.®^  There  is  great  diversity  of 
judicial  opinion  as'  to  what  results  are  necessarily  im- 
plied by  a  breach  of  promise.  For  instance,  some  juris- 
dictions, in  seeming  disregard  of  the  fundamental  prin- 
ciples of  all  pleading,  permit  recovery  for  seduction 
without  any  allegation  thereof  in  the  pleadings  and  with 
only  a  claim  for  general  damages ;  ^^  and  some  courts 
hold  that  injury  to  health  need  not  be  specially  pleaded.*'^ 
Such  rulings  seem  very  strange,  when  one  considers  that 
a  majority  of  engagements  and  breaches  thereof  un- 
doubtedly transpire  without  any  seduction  or  any  injury 
to  health.  To  hold  that  seduction  may  be  recovered  for 
without  special  allegation,  is  tantamount  to  holding  that 
seduction  is  so  necessary  a  result  of  an  engagement  and 
its  breach  as  to  be  necessarily  implied  from  a  mere 
general  statement  of  the  cause  of  action.  Merely  to 
assert  such  a  proposition  is  to  demonstrate  its  absurdity. 
Sympathy  for  the  plaintiff  has  doubtless  caused  some 
courts  to  make  such  rulings  in  order  to  save  her  from  the 
misfortune  of  losing  the  larger  part  of  her  proper  dam- 
ages through  the  mistake  of  her  attorney  in  not  pleading 
them.  Individual  differences  of  opinion,  however,  as  to 
what  may  properly  be  inferred  from  a  general  statement 
of  a  cause  of  action,  seem  to  make  impossible  the  develop- 

63— Tyler  v.  Salley,  supra.  65— Hively    v.    Golnick,     (1913) 

64— Poehlmann  v.  Kertz,   (1903)  123   Minn.  498,  144  N.  W.   213,  49 

204  111.   418,   68   N.    E.   467.     The  L.   E.   A.    (N.   S.)    757,   Ann.    Caa. 

reasoning  in  this  case  is  more  emo-  1915  A  295. 

tional  than  logical. 


BREACH  OF  PROMISE  301 

ment  of  any  more  uniform  line  of  holdings  here  than  on 
the  troublesome  subject  of  proximate  cause. 

170.  Actions  Against  or  by  Personal  Representative. — 
Ordinarily,  the  breach  of  a  marriage  promise  is  treated 
as  if  it  were  a  personal  tort,  and  no  right  of  action  sur- 
vives for  or  against  the  personal  representative  of  either 
of  the  parties. ^^  It  would  not  be  in  accord  with  the  gen- 
eral rule  of  the  common  law  to  assess,  for  or  against  an 
executor  or  administrator,  damages  for  violated  faith 
and  disappointed  hopes  and  exemplary  damages  possibly 
large  enough  to  render  the  estate  insolvent,  to  the  loss  of 
creditors.®'^  The  rule  is  the  same,  even  where  the  de- 
fendant deceitfully  entered  into  the  promise,  not  intend- 
ing to  keep  it,  and  accomplished  seduction  thereunder, 
as  a  result  of  which  the  seduced  woman  died.  Although 
a  parent  would  have  an  action  for  the  seduction,  the  ad- 
ministrator of  the  daughter  could  not  maintain  an  action 
for  the  breach  of  promise.®^ 

But,  although  the  action  is  quasi-tortious  in  its  nature, 
the  fact  that  contractual  elements  are  involved  in  its  sub- 
stance as  well  as  in  its  form,  is  not  ignored  by  the  courts ; 

66 — Chamberlain    v.   Williamson,  reasons     for     that     decision     are 

(1814)    2   M.    &    S.    408,    105   Eng.  equally   favorable   to  the  positiom, 

Eepr.    433;    in    which    Lord    Ellen-  that  it  does  not  survive  against  the 

borough  says:  "Executors  and  ad-  administrator  of  the  promisor.    The 

ministrators  are  the  representatives  respondent 's     actiom     is     founded 

of  the   temporal  property,  that  is,  upon  alleged  mutual  promises,  and 

the    debts    and    goods    of    the    de-  there    cannot    be    a    greater    legal 

ceased,   but    not   of    their  wrongs,  absurdity  than  that,  in  such  a  case, 

except  where  their  wrongs  operate  the   promise   should  be  allowed  to 

to    the    temporal    injury    of    their  survive    to     one    party,    and    not 

personal  estate.     But  in  that  case  to   the   other."     See  also  Hayden 

the    special    damage    ought    to    be  v.  Vreeland,  (1875)  37  N.  J.  L.  372, 

stated  on  the  record;  otherwise  the  18   Am.   Rep.   723;   and  Lattimore 

court  cannot  intend  it. "  Referring  v.    Simmons,    (1825)    13    S.    &    R. 

to  this  case,  counsel  for  the  peti-  (Pa.)  183. 

tioner,     in     Stebbins     v.     Palmer,  67 — Stebbins    v.    Palmer,    supra. 

(1882)  1  Pick.  (Mass.)   71,  11  Am.  68— Larocque  v.  Conheim,  (1904) 

Dee.  146,  pertinently  remarks:  "It  87  N.  Y.  Supp.  625,  42  Misc.  613. 
will    be   found,    that   most    of    the 


302  LAW  OF  DAMAGES 

and  so,  where  special  damage  to  the  personal  estate  of  the 
jilted  person  is  shown,  the  personal  representative  of 
such  person  may  recover,  if  such  special  damage  is  laid 
in  the  declaration ;  and  likewise  the  jilted  person  may  sue 
the  personal  representative  of  the  promisor,  if  his  per- 
sonal estate  has  been  damaged  by  the  breach,  provided  he 
plead  such  special  damage.®^  Under  this  rule,  it  seems 
that  there  may  be  recovery  by  or  against  an  executor  or 
administrator,  where  it  is  pleaded  and  proved  that  the 
wronged  person,  in  pursuance  of  one  of  the  terms  of  the 
agreement  to  marry,  gave  up  a  remunerative  position.'^® 
It  cannot  be  said  that  money  spent  for  a  bridal  trousseau 
could  never  be  recovered  in  an  action  by  or  against  a 
personal  representative.  If  the  contract  is  such  that  the 
plaintiff  would  naturally  buy  a  trousseau  and  has  actually 
bought  it  before  the  date  of  the  breach,  it  seems  logical 
that  contractual  principles  should  govern  as  to  this  point, 
and  that  there  should  be  a  recoveryJ^  In  such  a  case, 
there  is  an  injury  to  the  plaintiff's  personal  estate,  and 
such  injury  is  a  natural  and  probably  consequence  of  the 
breach. 

CASE  ILLUSTRATIONS 

1.  Plaintiff  kept  secret  her  contract  to  marry  defendant  and 
her  illicit  relations  with  him  thereunder.     Defendant  contends 

6& — Stebbins   v.   Palmer,    (1822)  or  two  subsequent  to  the  time  of 

1   Pick.    (Mass.)    71,  11  Am.  Dec.  the    breach?      Would    such    early 

146.  preparation  be  within  the  c(mtem- 

70— Finlay  v.  Chirney,  (1888)  20  plation  of  the  parties?     Probably 

Q.  B.  D.  494,  57  L.  J.  Q.  B.  247.  no   recovery   could   be   allowed   in 

71 — "Perhaps  if  a  date  were  so  extreme  a  case;  and  certainly, 
fixed  for  the  marriage,  and  the  on  principle,  none  should  be  al- 
plaintiff  purchased  her  trousseau  lowed.  The  writer  is  inclined,  how- 
on  the  strength  of  it,  this  might  ever,  to  agree  with  Mr.  Sedgwick's 
be  held  a  ground  of  recovery  above-quoted  conjecture  as  to  the 
against  the  executor." — Sedg.  El.  right  of  the  plaintiff  who  has  pur- 
Dam.  (2d  ed.)  p.  327.  Might  this  chased  her  trorusseau  after  the  set- 
be  so,  if  the  date  fixed  were  a  year  ting  of  a  date  for  the  marriage,  as 


BREACH  OF  PROMISE  303 

that,  as  she  told  no  one  of  these  matters,  she  suffered  no  mortifi- 
cation and  so  could  not  recover  for  injury  to  her  feelings.  This 
contention  is  not  sound.' ^ 

2.  The  defendant,  a  physician  and  surgeon  living  with  the 
plaintiff  under  circumstances  that  tended  to  indicate  the  existence 
of  a  common  law  marriage,  and  having  children  by  her,  promised 
to  marry  her.  The  plaintiff  suffered  a  burn,  which  caused  a  can- 
cerous growth  on  her  arm,  in  consequence  of  which  the  defendant, 
being  ' '  chilled  by  her  looks, ' '  cast  her  off.  As  a  result,  plaintiff 
had  to  work  harder,  which  prevented  her  arm  from  healing ;  not 
having  healed,  the  arm  had  to  be  amputated.  Held,  that  the  loss 
of  the  arm  being  such  a  loss  as  the  defendant,  being  a  medical 
man,  might  reasonably  have  anticipated  as  a  result  of  his  casting 
her  off,  he  is  liable  therefor.'^ ^ 

3.  The  defendant,  in  an  action  for  breach  of  promise,  in  good 
faith,  attempts  to  prove  that  the  plaintiff  is  a  lewd  and  base 
woman,  and  fails  in  his  proof.  Such  attempt  and  failure  cannot 
be  taken  into  consideration  in  assessing  damages.'^* 

4.  The  defendant,  in  his  answer,  stated  that,  at  the  time  of 
the  alleged  promise  of  marriage,  "the  plaintiff  was  a  common 
prostitute,  and  still  is  so,  and  was,  and  is  an  unchaste  woman, 
and  had,  and  has  illicit  intercourse  with  various  persons;"  but 
he  did  not  attempt  to  prove  any  of  these  allegations.  Held,  that 
*'the  jury  have  a  right  to  take  this  circumstance  into  considera- 
tion, in  aggravation  of  the  damages  to  which  the  plaintiff  may 
be  entitled,  ""^s 

5.  The  defendant  gave  notice  that  he  would  prove  in  his  de- 
fense that  the  plaintiff  had  at  various  times  and  with  various 
persons,  specifying  them,  committed  fornication  after  the  alleged 
promise  of  man-iage.  He  tried  to  prove  this  i)art  of  his  defense, 
at  the  trial,  but  failed ;  and,  from  the  testimony  of  his  own  wit- 
nesses, it  appeared  that  there  was  not  even  suspicion  of  her  un- 
chastity.  On  these  facts,  the  setting  up  of  such  defense  is  ground 
for  the  awarding  of  exemplary  damages.'^^ 

expressing  a  correct  general  rule,          74 — ^Pidler  v.   McKinley,   (1859) 

subject  only  to  the  exception  sug-      21  111.  308;  Denslow  v.  Van  Horn, 

gested.  (1864)  16  la.  476. 

72 — Morgan     v.     Muench,  (la.           75 — Thorn  v.  Knapp,   (1870)    42 

1916)    156  N.  W.  819.  N.  Y.  474,  1  Am.  Eep.  561. 

73— Duff   V.   Judson,    (1910)    160  76— Southard  v.  Bexford,  (1826) 

Mich.  386,  125  N.  W.  371.  6  Cowen  (N.  Y.)  254. 


304  LAW  OF  DAMAGES 

6.  The  defendant,  in  an  attempt  at  mitigation  of  damages,  sets 
up  the  unchastity  and  various  unchaste  acts  of  the  plaintiff, 
having  no  sufficient  reason  to  believe  that  his  allegations  are  true, 
though  he  does  not  know  that  they  are  untrue.  These  allegations 
are  made  in  bad  faith,  and  therefore  may  be  considered  in  aggra- 
vation of  damages.'^ ^ 

7.  The  defendant,  a  married  man,  representing  himself  to  be 
single,  promised  to  marry  the  plaintiff,  who,  finding  that  the 
defendant  was  married,  consented  to  continue  the  contract,  with 
the  understanding  that  the  defendant  get  a  divorce  from  his 
present  wife.  This  consent,  if  given  freely  and  understandingly, 
and  uninfluenced  by  fraudulent  representations,  may  be  con- 
sidered in  mitigation  of  damages.''^ 

8.  In  an  action  for  breach  of  promise,  the  court  instructed  the 
jury  that  if  the  person  guilty  of  the  breach  "had  pernicious 
anemia,  and  believed  that  it  would  be  fatal  after  a  year  or  so 
from  such  time,  you  would  have  a  right  to  consider  that  upon 
the  question  of  amount  of  damages.  Under  the  testimony  offered, 
if  he  had  pernicious  anemia,  which  would  be  reasonably  certain 
to  bring  about  death  within  several  months  or  a  year,  or  some- 
thing like  that,  she  would  have  his  society  for  such  shorter  time 
and  would  be  entitled  to  recover  a  lesser  amount.  So  you  will 
consider  the  testimony  with  reference  to  pernicious  anemia  as 
bearing  upon  that  phase  of  the  case  and  that  only.*'  Held, 
sufficiently  favorable  to  plaintiff.'^^ 

9.  Defendant  agreed  to  marry  plaintiff,  knowing  that  there 
was  a  taint  of  insanity  in  plaintiff's  family.  The  fact  of  such 
taint  cannot  be  considered  in  mitigation  of  damages,  although 
it  would  be  otherwise  if  defendant  had  been  ignorant  of  such 
taint  at  the  time  of  his  promise.^^ 

10.  Defendant,  after  breaking  his  promise  to  marry  plaintiff, 
offered  to  marry  her  if  she  would  agree  to  enter  into  a  prenuptial 
contract  providing  that  in  the  event  of  "a  serious  disagreement 
and  separation"  after  marriage,  neither  party  ** should  have  any 

77— Leavitt  v.  Cutler,  (1875)  37  (1915)    226  Fed.   15,  140   C.   C.  A. 

Wis.  46.  310. 

78 — Coover  v.  Davenport,  (1870)  80— Lohner    v.    Coldwell,    (1897) 

1  Heisk.   (Tenn.)   368,  2  Am.  Rep.  15   Tex.   Civ.   App.  444,  39  S.  W. 

706.  591. 

79  —  Parsons      v.      Trowbridge, 


BREACH  OF  PROMISE  305 

interest  in  the  property  of  the  other  by  reason  oi  their  marriage." 
Such  an  offer  neither  bars  the  action  nor  mitigates  the  damages.*^ 

11.  Defendant,  an  auctioneer  and  real  estate  dealer,  with  a 
large  income  from  such  occupations,  and  worth,  at  the  time  of 
the  trial,  about  $40,000,  broke  his  promise  to  marry  plaintiff, 
after  seducing  her.    A  verdict  for  $15,000  is  not  excessive,^^ 

12.  The  defendant  was  worth  about  $12,000.  He  was  engaged 
to  plaintiff  for  seventeen  years.  He  induced  plaintiff  to  borrow 
from  her  sister,  for  him,  the  sum  of  $50,  which  he  agreed  to  re- 
pay, but  never  did.  Plaintiff  loaned  him  money  to  buy  books. 
He  kept  plaintiff's  watch  during  the  time  of  their  engagement, 
and  accepted  presents  from  plaintiff  from  time  to  time.  A  ver- 
dict for  $5,000  is  not  excessive.^^ 

13.  Defendant  in  an  action  for  breach  of  promise,  with  no 
aggravating  circumstances  reported,  admitted  that  he  was  worth 
from  $75,000  to  $100,000,  and  declined  to  swear  that  he  was  not 
worth  $300,000.  Held,  that  a  verdict  for  $17,425  is  not  exces- 
sive.8* 

14.  Plaintiff  and  defendant,  after  having  long  continued  sexual 
relations  because  of  a  promise  of  marriage,  made  a  settlement 
to  cover  such  relations.  Held,  that,  in  an  action  for  breach  of 
promise,  the  jury  must  not  consider  the  relations  before  the 
settlement.s'^ 

81— Chapman   v.   Brown,    (1915)  84— Cox  v.  Edwards,  (1914)   126 

192  Mo.  App.  78,  179  S.  W,  774.  Minn.   350,   148   N,   W.   500. 

82 — Morgan     v.     Mueneh,     (la.  85  —  Jaskolski       v.       Morawski, 

1916)   156  N.  W.  819.  (1914)    178   Mich.  325,  144  N.  W. 

83— Thrush    v.    Fullhart,    (1915)  865. 
230  Fed.  24,  144  C.  C.  A.  322. 


Bauer  Dam. — 20 


PART  IV 

DAMAGES  IN  PARTICULAR  CLASSES  OF  TORT 

ACTIONS 

CHAPTER  XXXIX 

Negligent  Torts 

171.  In  General. — A  great  many  of  the  actions  brought 
for  torts  are  for  negligent  wrongs  as  distinguished  from 
wilful  wrongs.  One  may  be  negligent  in  his  manner  of 
fulfilling  a  contract,  but  the  great  majority  of  instances 
of  negligence  brought  into  court  for  adjudication  as  such 
are  in  actions  for  torts. 

Negligence  is  the  failure  to  do  a  legal  duty.  If  no  legal 
duty  is  neglected,  there  is  no  negligence.  A  fortiori,  if 
no  duty  exists,  there  can  be  no  negligence.^ 

172.  Negligence  and  Causation. — ^As  indicated  else- 
where,^  it  is  easy  to  confound  the  question  of  proximate 
cause  with  that  of  the  existence  of  negligence;  and  nu- 
merous instances  of  such  confusion  can  be  shown.  In 
determining  whether  negligence  exists,  it  is  often  neces- 
sary to  decide  a  contested  question  whether  there  is  any 
duty.  Right  here  much  of  the  confusion  of  negligence 
cases  arises ;  and  it  is  at  this  point  that  much  of  unsatis- 

1 — "Actionable  negligence  may  gence  depends  upon  the  particular 
flow  frorm  the  failure  of  a  party  facts  and  the  law  applicable 
to  observe  a  general  or  particular  thereto." — Whitfield,  J.,  in  Sou- 
duty  towards  others  under  circum-  thern  Express  Co.  v.  Williamson, 
stances  that  in  law  impose  the  (1913)  66  Fla.  286,  63  So.  433,  7 
duty,  where  such  failure  proxi-  N.  C.  C.  A.  365. 
mately  injures  another.  Whether  2 — Chapter  TV. 
there    has    been    actionable    negli- 

307 


308  LAW  OF  DAMAGES 

factory  discussion  of  naturalness  and  probability  of  re- 
sult in  connection  with  tort  cases  takes  place.  Certainly 
no  one  is  under  a  duty  to  foresee  and  prevent  conse- 
quences that  are  so  far  from  being  natural  and  probable 
that  one  cannot  possibly  be  said  to  have  contemplated 
them  or  consequences  of  the  same  general  class.  So  we 
find  many  instances  in  which  an  action  is  brought  for 
injuries  which  the  defendant  was  under  no  duty  to  pre- 
vent, and  in  which  therefore  no  negligence  is  found.  Such 
cases  must  not  be  confused  with  those  in  which  the  de- 
fendant has  actually  been  negligent,  but  in  which  certain 
of  the  injurious  consequences  to  the  plaintiff  are  too  re- 
mote to  allow  of  recovery.^ 

173.  Damage  the  Gist  of  Actions  for  Negligent  Wrongs. 

— Negligence  is  not,  of  itself,  a  ground  for  the  assess- 
ment of  damages.  Without  damage,  negligence  is  not 
even  the  basis  of  an  action  for  nominal  damages.  In 
other  words,  damage  is  the  gist  of  an  action  arising  out 
of  negligence.  Strictly  speaking,  there  is  no  such  thing 
as  an  action  for  negligence;  for  an  action  is  rather  for 
a  negligent  injury. 

3 — "Where  the  nature  of  the  act  such  a  case  rises  to  or  above  that 

or   omission   is  doubtful,   the   best  standard,   there   is   no   such    negli- 

test  of  actionable  negligence,  where  gence;   if  it  fall  below  there  is." 

available,    is    the    degree    of    care  — Chicago  Great  Western  Ky.   Co. 

which  persons  of  ordinary  intelli-  v.  Minneapolis,  St.  P.,  etc.,  Ey.  Co., 

gence  and  prudence  commonly  exer-  (1910)    176  Fed.  237,  100  C.  C.  A. 

cise  under  the  same  or  like  circum-  41,  20  Ann.  Cas.  1200. 
stances.     If  the  care  exercised  in 


CHAPTER  XL 

Actions  for  Tortious  Damage  Pertaining  to  Realty 

174.  In  General. — The  rights  of  an  owner  of  land  or 
a  term  therein  may  be  interfered  with  by  a  trespass, 
which  may  consist  either  of  a  mere  wrongful  entry  npon 
the  land  or  of  such  an  entry  plus  certain  injurious  acts 
thereon;  or  by  acts  of  waste,  committed  by  a  tenant,  to 
the  injury  of  a  remainderman  or  reversioner;  or  by  the 
maintenance  of  a  nuisance  that  diminishes  the  usefulness 
or  value  of  the  premises. 

Courts  have  found  it  difficult  to  lay  down,  in  regard  to 
the  measure  of  damages  in  actions  for  injury  to  real 
property,  rules  that  are  complete  and  easily  applicable 
to  all  cases. 

The  extent  of  the  plaintiff's  right  in  the  land,  limits  the 
measure  of  his  recovery.  The  nature  and  extent  of  the 
right  of  the  plaintiff  in  the  premises  is  always  of  first 
importance;  for  he  cannot  have  suffered  damage  to  a 
greater  estate  than  that  which  he  owned  at  the  time  of 
the  perpetration  of  the  wrong.  Naturally,  if  he  is  a  life 
tenant  or  a  tenant  for  years,  a  permanent  injury  to  the 
property  may  not  damage  him  so  much  as  if  he  were 
owner  in  fee  simple.  If  the  plaintiff  is  a  tenant  for  one 
year,  his  interest  in  the  land  cannot  sustain  so  large  a 
damage  as  if  he  were  a  tenant  for  ten  years.  A  tempo- 
rary injury  to  realty  may  cause  a  heavy  loss  to  a  tenant 
for  life  or  for  years  and  little  or  no  loss  to  a  remainder- 
man or  reversioner.* 

175.  Permanent  and  Temporary  Injury. — The  ques- 
tion whether  the  injury  is  permanent  or  temporary,  is  of 

l__Gilbert    V.    Kennedy,    (1870) 
22  Mich.  5. 

309 


310 


LAW  OF  DAMAGES 


considerable  moment.^  If  the  injury  is  permanent,  as 
where  the  value  of  the  land  is  permanently  impaired  by 
removal  of  soil,  in  this  case  the  owner  may  recover  such 
damages  as  will  compensate  him  for  his  permanent  loss, 
which  is  the  amount  of  depreciation  in  the  value  of  the 
property;  ^  and,  where  the  plaintiff's  land  has  been  tem- 
porarily occupied  by  the  defendant,  the  plaintiff  is  en- 
titled only  to  compensation  for  temporary  loss,  which  is 


2— Troy  v.  Cheshire  E.  Co., 
(1851)  23  N.  H.  83,  55  Am.  Dec. 
177. 

3 — Stoudenmire  v.  DeBardelaben, 
(1888)  85  Ala.  85,  4  So.  723;  Chi- 
cago, K.  &  W.  R.  Co.   V.  Willets, 

(1891)  45  Kan.  110,  25  Pac.  576. 
If  the  cost  of  restoring  the  land  to 
its  former  condition  is  less  than 
the  diminution  in  value,  the  de- 
fendant has  a  right  to  insist  that 
the  measure  of  damages  include 
only  the  cost  of  such  restoration 
and  the  value  of  the  use  of  the 
land  during  the  continuance  of  the 
condition  brought  about  by  de- 
fendant's wrong.  (The  value  of 
the  use  of  the  land  only  for  a 
reasonable  time  could  be  included, 
as  the  doctrine  of  avoidable  con- 
sequences would  keep  the  plaintiff 
from  neglecting  to  restore  the 
premises  and  charging  up  value  of 
use  to  the  defendant  for  an  in- 
definite time.)  See:  Vermilya  v. 
Chicago,  M.  &  St.  P.  Ey.  Co.,  (1885) 
66  la.  606,  24  N.  W.  234,  55  Am. 
Rep.  279;   Hartshorn  v.  Chaddock, 

(1892)  135  N.  Y.  116,  31  N.  E. 
997,  17  L.  E.  A.  426. 

"If  the  soil,  having  no  value 
separated  from  the  land,  was 
stripped  from  it,  so  as  to  render 
it  unproductive  and  unfit  for  the 
use  to  which  it  was  applied,  the 
diminished  value  of  the  land  would 


be  the  only  adequate  measure  of 
compensation.  So,  also,  where 
trees  designed  for  shade  or  orna- 
ment have  been  cut  down,  where- 
by the  value  of  the  land  has  been 
greatly  lessened.  And  in  cases  of 
permissive  waste,  where  a  pur- 
chaser has  been  kept  out  of  pos- 
session, and  the  land  has  suffered 
from  lack  of  cultivation,  the  court 
would  compel  an  allowance  to  be 
made  by  the  seller  for  the  injury 
to  the  land.  •  ♦  *  But  the  di- 
minished value  of  the  land  is  not 
the  exclusive  measure  of  relief  for 
an  injury  in  the  nature  of  waste 
committed  by  a  wrong-doer  on  the 
land  of  another.  In  many  cases 
it  would  substantially  exempt  him 
from  responsibility.  Cutting  a  few 
trees  on  a  timber  tract,  or  taking 
a  few  hundred  tons  of  coal  from 
a  mine,  might  not  diminish  the 
market  value  of  the  tract,  or  of 
the  mine,  and  yet  the  value  of 
the  wood  or  coal,  severed  from 
the  soil,  might  be  considerable. 
The  wrong-doer  would,  in  the  cases 
instanced,  be  held  to  pay  the  value 
of  the  wood  and  coal,  and  he  could 
not  shield  himself  by  showing  that 
the  property  from  which  it  was 
taken  was,  as  a  whole,  worth  as 
much  as  it  was  before." — Worrall 
V.  Munn,  (1873)  53  N.  Y.  185. 


TORTIOUS  DAMAGE  TO  REALTY  311 

the  value  of  the  use  of  the  land  for  the  period  during 
which  he  is  deprived  of  such  use.* 

176.  Ejectment. — In  an  action  of  ejectment,  usually  the 
most  important  right  of  the  plaintiff,  if  he  establishes  his 
right  to  possession  of  the  land,  is  the  right  to  be  put  in 
possession.  Further,  he  has  a  right  to  the  net  rental 
value  or  mesne  profits  of  the  land  for  the  period  of  the 
wrongful  occupation  by  the  defendant,  and  interest  there- 
on.^ Mesne  profits  were  formerly  recovered  only  in  a 
separate  action  subsequent  to  that  of  ejectment,  and  such 
is  still  the  English  rule ;  ®  but  the  usual  American  rule  is 
that  mesne  profits  may  be  recovered  in  ejectment."' 
Equity  early  granted  compensation  to  an  innocent  occu- 
pant for  reasonable  improvements  made  by  him  and  for 
care  of  the  property ;  and  courts  of  law,  adopting  the  doc- 
trine, now  peraiit  him  to  set  off  the  reasonable  cost  of 
such  improvements  and  care  against  the  mesne  profits.* 
The  plaintiff  may  recover  for  waste  committed  by  the  de- 
fendant, if  he  specially  pleads  it. 

177.  To  What  Time  Damages  Are  Recoverable.— Where 
the  tort  consists  simply  of  one  act,  resulting  in  perma- 

4 — McGann  v.  Hamilton,   (1889)  "The   general  principle   is  that 

58  Conn.  69,  19  Atl.  376;   McWil-  the  plaintiff  is  entitled  to  recover 

liams  V.  Morgan,  (1874)  75  111.  473,  all  damages  fairly  resulting  from 

5 — Credle   v.   Ayers,    (1900)    126  his  having  been  wrongfully  kept  out 

N.  Car.  11,  35  S.  E.  128,  48  L.  E.  of   possession." — Suth.   Dam.    (4th 

A.    751.  ed.)    §993.     See  also:   Doe  v,  Per- 

6— Doe  V.  Filliter,  (1844)   13  M.  kins,  (1848)  8  B.  Mon.  (Ky.)  198; 

&  W.  47,  153  Eng.  Repr.  20.  Baltimore    &   O.    R.    Co.    v.    Boyd, 

7— WoodhuU  V.  Rosenthal,  (1875)  (1887)    67  Md.  32,   10  Atl.  315,   1 

61  N.  Y.  382.  Am.  St.  Rep.   362. 

"The   plaintiff   must   prove   the  8 — Jackson  v.  Loomis,   (1825)   4 

value  orf  the  mesne  profits,  for  the  Cow.    (N.   Y.)    168,    15    Am.    Dec. 

judgment  in  ejectment  does  not  es-  347;    Ege  v.   Kille,    (1877)    84  Pa. 

tablish    anything    as    to    that." —  333;  Tiffany  on  Real  Property,  pp. 

Suth.   Dam.    (4th    ed.)    §993.     See  553-5.54.      See    Hodgkins    v.    Price, 

also    Willis    V.    Morris,    (1886)    66  (1866)  141  Mass.  162,  5  N.  E.  502. 
Tex.  628,  1  S.  W.  799,  59  Am.  Rep. 
634. 


312  LAW  OF  DAMAGES 

nent  injury  to  the  plaintiff's  land,  there  is  no  difficulty 
in  assessing  damages  for  such  injury,  once  for  all ;  ^  but, 
where  there  is  a  continuing  nuisance  or  a  continuing 
wrongful  occupation  of  the  premises,  or  a  succession  of 
trespasses,  damages  cannot  be  assessed  to  cover  future 
losses,  which  have  to  be  left  for  recovery  in  future  ac- 
tions.^ ^  Where  the  damage  to  plaintiff's  land  has  been 
caused  by  a  nuisance  maintained  by  the  defendant  upon 
his  own  premises  up  to  the  time  of  the  bringing  of  the 
action,  it  remains  at  all  times  within  the  power  of  the  de- 
fendant to  cease  from  his  wrongdoing;  and,  as  there  is 
no  presumption  that  he  will  continue  the  nuisance,  dam- 
ages cannot  be  assessed  for  any  loss  resulting  from  the 
maintenance  of  the  nuisance  after  the  commencement  of 
the  action.^  ^  If  the  nuisance  is  permanent,  damages  may 
be  assessed,  once  for  all.^^  Where  an  obstruction  is 
permanent,  damages  may  be  assessed  for  past  and  future 
losses  accruing  therefrom.  For  instance,  a  company  built 
a  railroad,  passing  over  a  town's  highway,  obstructing 
the  highway  and  destroying  a  bridge  thereon.  The  rail- 
road is  a  permanent  structure,  not  liable  to  change.  The 
injury  is  permanent,  dependent  upon  no  contingency  of 
which  the  law  can  take  notice.  The  damages  are  the  value 
to  the  town  of  the  property  and  rights,  of  which  it  has 

9 — Troy     v.     Cheshire     R.     Co.,  is  necessarily  an  injury,  and  that 

(1851)   23  N.  H.  83,  55  Am.  Dec.  when  it   is  of  a  permanent   char- 

177.  acter,   that   will   continue   without 

10 — Savannah  &  O.  Canal  Co.  v.  change  from  any  cause  but  human 

Bourquin,  (1874)   51  Ga.  378.  labor,  the  damage  is  original,  and 

11 — Joseph   Schlitz  Brewing  Co.  may   be   at    once    fully    estimated 

V.    Compton,    (1892)    142   111.    511,  and   compensated;    that   successive 

32  N.  E.  693,  18  L.  R.  A.  390,  34=  actions  will  not  lie,  and  that  the 

Am,  St.  Rep.  92.  statute    of    limitations    commences 

12 — Troy    v.     Cheshire    R.     Co.,  to  run  from  the  time  of  the  com- 

(1851)    23  N.  H.  83,  55  Am.  Dec.  mencement    of   the   injury    to    the 

177.  property." — Stodghill    v.    Chicago, 

"The  question  being  as  to  what  B.  &  Q.  R.  Co.,  (1880)   53  la.  341, 

is    a    permanent    nuisance,   it    was  5  N.  W.  495,  referring  to  Powers 

held   that   where   it   was   of   such  v.   City  of  Council  Bluffs,    (1877) 

9,    character    that    its    continuance  45  la.  652,  24  Am.  Rep.  792. 


TORTIOUS  DAMAGE  TO  REALTY  313 

been  deprived,  for  the  use  and  purpose  to  which  it  is  by 
law  bound  to  apply  them.  Assuming  the  sufficiency  of 
the  old  highway  to  meet  the  legal  requirements  and  the 
public  needs,  this  value  is  to  be  measured  by  the  cost  of 
new  ground  for  a  way,  if  it  will  be  less  costly,  and  more 
reasonable,  having  reference  to  the  accommodation  of  the 
public  by  the  highway,  and  the  railway  to  procure  new 
ground,  rather  than  to  build  the  highway  over  or  under 
the  railway,  and  the  cost  of  the  materials  for  the  new 
road  which  will  meet  requirements  as  well  as  the  old,  and 
the  expense  of  applying  those  materials  to  that  use  in  the 
new  road,  and  also  the  fund  that  will  be  required  perma- 
nently in  all  future  time  to  defray  the  increased  expense 
of  supporting  and  maintaining  the  new  road  in  suitable 
repair,  beyond  what  would  have  been  necessary  for  the 
old  road.  These  elements  constitute  the  present  value 
of  the  old  road.^*  Wliere  it  is  beyond  the  legal  right 
of  the  defendant  to  cause  the  ill  effects  of  his  wrong- 
doing to  cease,  as  in  a  case  where  he  has  trespassed  upon 
the  plaintiff's  land  and  made  excavations,  it  is  evident 
that  he  cannot  right  the  wrong  without  committing  an- 
other trespass ;  and  so  the  law  permits  the  assessment  of 
damages  for  past  and  future  loss,  all  in  one  action.^^  But 
where  the  trespass  is  of  a  continuing  nature,  there  is  no 
more  presumption  that  the  defendant  will  persist  in  his 
wrongful  conduct  than  there  is  in  the  case  of  a  nuisance, 
so  that  damages  are  recoverable,  in  such  a  case,  only  to 
the  date  of  the  commencement  of  the  action;  prospective 
damages  are  not  then  recoverable,  and,  if  the  trespass  is 
persisted  in,  the  plaintiff  may  again  bring  an  action.^'' 
A  more  difficult  question  is  raised  where  one  act  of  the 

13— Troy    v.     Cheshire    R.    Co.,  New  York  Central  R.  Co.,   (1886) 

(1851)    23   N.   H.   83,  55  Am.  Dec.  101  N.  Y.  98,  4  N.  E.  536,  54  Am. 

177.     Portions   of  the   text   above  Rep.  061. 

are     quoted     verbatim     from     the  15 — Holmes  v.  Wilson,  (1839)   10 

opinion.  Adol.    &    E.    503,    113    Eng.    Repr. 

14— Kansas  Pacific  Ry.  v.  Mihl-  190,  37  E.   C.  L.   273. 
man.  (1876)  17  Kan.  224;  Uline  v. 


314  LAW  OF  DAMAGES 

defendant  proximately  results  in  a  series  of  events 
detrimental  to  the  plaintiff,  owner  of  the  land  damaged. 
If  defendant's  act  is  not  continuing,  and  is  itself  action- 
able independently  of  the  question  of  damage,  damages 
may  be  assessed  for  past  and  prospective  losses,  once  for 
all,  in  one  action.^^  In  such  a  case,  the  plaintiff's  right 
of  action  is  grounded  in  the  unlawful  act  of  the  defend- 
ant, and  not  in  the  damage  that  follows  it.  But  where 
the  very  gist  of  the  action  is  damage,  as  in  a  case  wherein 
the  defendant  has  legally  done  an  act  on  his  own  land, 
which  act  has  no  illegal  element  unless  it  results  in  dam- 
age to  the  plaintiff,  the  latter  cannot  maintain  an  action 
unless  he  is  damaged;  and  so,  if  the  plaintiff's  land  is 
damaged  a  little  now  by  such  act  and  is  damaged  more 
as  a  later  but  proximate  consequence  of  the  same  act,  the 
plaintiff  may  maintain  a  new  action  each  time  damage 
acrues.^'^  This  is  because  the  cause  of  action  is,  in  this 
case,  the  damage,  and  not  the  act  of  the  defendant  in 
itself.  Where  this  rule  is  applied,  it  becomes  possible 
for  an  owner  to  sue  for  a  subsidence  of  his  soil  occurring 
many  years  after  an  adjoining  owner  has  removed  sup- 
porting soil  from  his  own  premises.  The  inconvenience 
of  such  an  application  of  the  rule  may  seem  great,  but,  as 
has  been  said  in  a  famous  case,  **The  inconvenience  is  as 
great  the  other  way;"  for,  under  a  contrary  rule,  it  would 
follow  that,  "on  the  least  subsidence  happening,  a  cause 
of  action  accrues  once  and  for  all,  the  statute  of  limita- 
tions begins  to  run,  and  the  person  injured  must  bring 

16 — Chicago,  K,  &  W.  R.  Co.  v.  92;  Bowers  v,  Mississippi  &  R.  R 

Willets,    (1891)    45    Kan.    110,    25  Boom   Co.,    (1899)    78    Minn.    39S 

Pac.  576;  Loker  v.  Damon,  (1835)  81    N.    W.   208,    79   Am.   St.    Rep 

17  Pick.   (Mass.)   284.  395.     National  Copper  Co.  v.  Min 
17 — Darley  Main  Colliery  Co.  v.  nesota  Mining  Co.,  (1885)  57  Mich 

Mitchell,  (1886)  11  App.  Cas.  127;  83,  23  N.  W.  781,  58  Am.  Rep.  333 

Savannah  &  O.  Canal  Co.  v.  Bour-  nn   important   case,   is   distinguish 

quin,    (1874)    51    Ga.    378;    Joseph  able  from  the  cases  here  discussed 

Schlitz   Brewing    Co.    v.    Compton,  as   it  is   a   case    of  admitted   tres 

(1892)   142  111.  511,  32  N.  E.  693,  pass,  producing  immediate  damage, 

18  L.  R.  A.  390,  34  Am.  St.  Rep. 


TORTIOUS  DAMAGE  TO  REALTY  315 

his  action,  and  claim  and  recover  for  all  damage,  actual, 
possible,  or  contingent,  for  all  time. ' '  ^*  Besides  being 
unsound  in  principle,  such  a  rule  would  compel  the  plain- 
tiff, in  some  instances,  to  sue  at  a  time  when  he  had  suf- 
fered little  or  no  damage  and  when  it  would  be  impossible 
to  say  whether  large  damage  or  any  damage  at  all  would 
be  added  to  that  already  suffered.  In  many  cases,  the 
owner  would  be  practically  deprived  of  his  remedy,  as  in 
the  case  of  a  subsidence  coming  many  years  after  the  act 
of  the  defendant  producing  it;  since  he  would  have  no 
right  of  action  whatever  until  he  had  suffered  actual  dam- 
age, and,  by  the  time  he  had  suffered  such  damage,  the 
statute  of  limitations  might  have  run. 

178.  Where  Trespass  Takes  Something  from  the  Land. 
— Where  the  defendant  has  wrongfully  severed  and  taken 
something  from  the  realty,  the  owner  may  elect  to  do 
any  one  of  the  following:  bring  replevin  to  recover  the 
thing  back ;  bring  trover  to  get  the  value  of  it  as  it  stood 
at  the  time  of  the  taking;  waive  the  tort  and  sue  in  as- 
sumpsit for  the  amount  of  benefit  actually  received  by 
the  wrongdoer  from  the  thing  taken;  waive  all  other 
rights  of  compensation  and  recover  the  mere  rental  value 
for  the  time  the  defendant  has  occupied  the  land,  if  he  has 
occupied  it  for  some  time ;  or,  where  the  injury  is  such  as 
not  to  make  it  impracticable  to  restore  the  land  to  its 
former  condition,  the  cost  of  such  restoration  is  some- 
"iimes  the  measure  of  damages ;  ^®  or  the  amount  of 
diminution  in  value  of  the  realty  may  be  recovered. 

18 — Darley  Main  Colliery  Co.  v.  destruction  of  some  addition,  fix- 
Mitchell,    supra.  ture  or  part  of  real  property,  the 

19 — Chicago,  K.  &  W.  R.  Co.  v.  loss    may    be    estimated    upon    the 

Willets,    (1891)    45    Kan,    110,    25  diminution    in    the    value    of    the 

Pac.    576.     It   is   said  in   Park   v.  premises,   if  any   results,  or   upon 

Northport  Smelting  Co.,  (1907)  47  the  value   of  the  part  severed  or 

Wash.  597,  92  Pac.  442,  "We  think  destroyed,      and      that      valuation 

the  better  rule  is  that  where  the  should  be  adopted  which  will  prove 

wrong  consists  in  the  removal  or  most     beneficial     to     the     injured 


316 


LAW  OF  DAMAGES 


Where  the  destruction  or  taking  of  a  thing  from  the 
land  leaves  the  land  as  valuable  as  before,  it  is  evident 
that  the  defendant  cannot  be  heard  to  say  that,  although 
he  has  destroyed  or  taken  away  a  thing  of  value,  only 
nominal  damages  can  be  assessed.  To  uphold  such  a  con- 
tention would  be  a  mere  travesty  on  justice.  In  such  a 
case,  the  proper  measure  of  damages  is  the  value  of  the 
thing  destroyed  or  taken.^^ 

Where  trees  are  wrongfully  cut  and  taken  from  the 
land,  the  owner  may  of  course  replevy  them  or  get  their 
value  by  suing  in  trover  or  assumpsit ;  or  he  may  recover 
the  difference  between  the  value  of  the  land  before  the 
wrongful  taking  and  the  value  after.^^  In  determining 
the  maximum  amount  of  damages  the  owner  can  get,  the 
question  whether  the  particular  trees  taken  are  more 
valuable  while   standing  than   after  being  cut,   is   im- 


party,  as  he  is  entitled  to  the  bene- 
fit of  his  property  intact."  Cited 
in  support  are  the  following  au- 
thorities: 28  Am.  &  Eng.  Ene.  of 
Law  (2d  ed.)  543 j  St.  LoTiis,  etc., 
Ry.  Co.  V.  Ayres,  (1900)  67  Ark. 
371,  55  S.  W.  159;  Argotsinger  v. 
Vines,  (1880)  82  N.  Y.  308;  Dwight 
V.  Railway  Co.,  (1892)  132  N.  Y. 
199,  30  N.  E.  398,  15  L.  R.  A.  612, 
28  Am.  St.  Rep.  563.  The  rule 
stated  seems  sound  and  consonant 
with  justice.  The  owner,  under 
any  other  rule,  might  not  be  so 
well  off  after  recovering  damages 
as  before   the   trespass. 

20— -Louisville  So  N.  R.  Co.  v. 
Beeler,  (1907)  126  Ky.  328,  103  S. 
W.  300,  11  L.  R.  A.  (N.  S.)  930. 

21— Bailey  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  (1893)  3  S.  Dak.  531, 
54  N.  W.  596,  19  L.  R.  A.  653. 

"In  cases  of  injury  to  real  es- 
tate the  courts  recognize  two  ele- 
jn^nts  of  damage:  (1)  The  value  of 


the  tree  or  other  thing  taken  after 
separation  from  the  freehold,  if 
it  have  any;  (2)  the  damage  to 
the  realty,  if  any,  occasioned  by 
the  removal.  *  *  *  A  party  may 
be  content  to  accept  the  market 
value  of  the  thing  taken  when  he 
is  also  entitled  to  recover  for  the 
injury  done  to  the  freehold.  But 
if  he  asserts  his  right  to  go  beyond 
the  value  of  the  thing  taken  or 
destroyed  after  severance  from  the 
freehold,  so  as  to  secure  compen- 
sation for  the  damage  done  to  his 
land  because  of  it,  then  the  meas- 
ure of  damages  is  the  difference 
in  value  of  the  land  before  and 
after  the  injury." — Parker,  J.,  in 
Dwight  v.  Elmira,  etc.,  R.  Co., 
(1892)  132  N.  Y.  199,  30  N.  E.  398, 
15  L,  R.  A.  612.  See  Disbrow  v. 
Westchester  Hardwood  Co.,  (1900) 
164  N,  Y.  415,  58  N.  E.  519.  See 
Suth.  Dam.  §1019, 


TORTIOUS  DAMAGE  TO  EEALTY  317 

portant.^2  If  the  trees  are  nothing  more  than  fully  ma- 
ture timber  trees,  ready  for  cutting,  the  most  that  the 
plaintiff  can  recover,  according  to  the  weight  of  author- 
ity, is  the  value  of  such  trees  at  the  time  of  their  sever- 
ance.^^ ''The  reason  assigned  for  it  [the  rule]  is  that 
the  realty  has  not  been  damaged,  because,  the  trees  hav- 
ing been  brought  to  maturity,  the  owner  is  advantaged 
by  their  being  cut  and  sold,  to  the  end  that  the  soil  may 
again  be  put  to  productive  uses. ' '  ^^  But  it  has  been  held 
in  New  York  that  the  plaintiff  may  recover  also  for  the 
damage  to  the  realty.^^  Where  nursery  trees  are  taken 
or  destroyed,  their  chief  or  only  value  being  for  trans- 
plantation, and  the  soil  not  being  damaged  by  their 
removal,  the  measure  of  damages  is  the  market  value  of 
the  trees.^*'  Where  growing  timber  is  destroyed  or  cut, 
the  case  is  different  from  that  of  matured  timber.  * '  Be- 
cause not  yet  fully  developed,  the  o^vner  of  the  freehold 
is  deprived  of  the  advantage  which  would  accrue  to  him 
could  the  trees  remain  until  fully  matured.  His  damage, 
therefore,  necessarily  extends  beyond  the  market  value 
of  the  trees  after  separation  from  the  soil,  and  the  dif- 
ference between  the  value  of  the  land  before  and  after 
the  injury  constitutes  the  compensation  to  which  he  is 
entitled.  (Citing  cases.^")  In  Wallace's  Case,  supra,^'^ 
the  court  said :  *  The  value  of  young  timber,  like  the  value 
of  growing  crops,  may  be  but  little  when  separated  from 
the  soil.  The  land,  stripped  of  its  trees  may  be  value- 
less. The  trees, .  considered  as  timber,  may  from  their 
youth  be  valueless ;  and  so  the  injury  done  to  the  plaintiff 

22— See  Foote  v.  Merrill,   (1874)  27— Chipman  v.  Hibberd,  (1856) 

54  N.  H.  490,  20  Am.  Rep.  151.  6  Calif.   162;   Longfellow  v.  Quim- 

23— Dwight    V.    Elmira,    etc.,    E.  by,  (1848)  33  Me.  457,  48  Am.  Dec. 

Co.,  supra.  525;  Hayes  v.  Railroad  Co.,  (1890) 

24— Id.  45    Minn.    17-20,    47    N.    W.    260; 

25— Van      Deusen      v.      Yorung,  Wallace  v.   Goodall,    (1846)    18  N. 

(1864)    29  N.  Y.  9.  H.  439, 

26— Birket    v.    Williams,    (1888) 
30  111.  App.  451. 


318  LAW  OF  DAMAGES 

by  the  trespass  would  be  but  imperfectly  compensated 
unless  he  could  receive  a  sum  that  would  be  equal  to  their 
value  to  him  while  standing  upon  the  soil.*  The  same 
rule  prevails  as  to  shade  trees,  which,  although  fully  de- 
veloped, may  add  a  further  value  to  the  freehold  for 
ornamental  purposes,  or  in  furnishing  shade  for  stock. 
*  *  *  The  current  of  authority  is  to  the  effect  that 
fruit  trees  and  ornamental  or  growing  trees  are  subject 
to  the  same  rule."^® 

It  sometimes  makes  considerable  difference  whether 
the  owner  elects  to  sue  in  trover  or  in  trespass  quare 
clausum  f regit,  under  the  common  law;  not  because  the 
mere  form  of  an  action  ever  should  be  held  to  make  a 
difference  as  to  the  measure  of  damages  for  the  same 
offense,  but  because  the  substantive  rights  asserted  in 
the  two  types  of  action  are  different.  In  trover,  the 
owner  is  seeking  to  enforce  his  right  to  be  compensated 
for  the  loss  of  the  article  destroyed  or  taken ;  in  trespass 
quare  clausum  f regit,  he  attempts  to  enforce  his  right  of 
compensation  for  damages  to  the  realty.  Even  where 
the  distinction  between  forms  of  action  is  abolished,  the 
plaintiff  may,  in  appropriate  cases,  assert  either  of  the 
two  rights.  Where  shade  trees  are  cut,  the  measure  of 
damages  in  trover  is  not  usually  so  large  as  in  trespass 
quare  clausum  f regit,  for  the  value  of  the  trees  as  severed 
timber  is  not  usually  equal  to  the  amount  of  depreciation 
in  value  of  the  realty  occasioned  by  their  cutting ;  so  that 
trespass  is  the  action  usually  elected  by  the  owner  in  such 
a  case.^®  Very  clearly,  the  amount  of  the  resulting 
diminution  in  value  of  the  land  is  the  proper  measure  of 
damages  for  the  destruction  of  an  orchard.^'' 

28 — Dwight  V.  Elmira,  etc.,  Co.,  30— (Orchard  trees.)  *'The  trees 

(1892)  132  N.  Y.  199,  30  N.  E.  398,  taken    up   and   removed    frorra    the 

15  L.  R.  A.  612.  place  may  have  been  and  probably 

29 — See   15   L.  R.  A.   613,  note.  were  of  very  little  value,  whereas 

Wallace   v.   Goodall,    (1846)    18  N.  in   their   growing  state  in   the  or- 

H.  439-456.  chard    thoy   may  have  added   con- 


TORTIOUS  DAMAGE  TO  REALTY  319 

Where  the  defendant  has  destroyed  or  converted  grow- 
ing crops,  the  measure  of  damages,  according  to  the  great 
weight  of  authority,  is  the  value  of  the  crops  at  the  time 
of  the  perpetration  of  the  injury.^^  There  are  practical 
difficulties  in  the  way  of  finding  this  value,  and  the  evi- 
dence that  is  admissible  for  this  purpose  is  such  as  to 
answer  an  inquiry'  of  considerable  scope.  In  order  to 
prove  the  value  of  the  growing  crops  destroyed  or  con- 
verted, it  is  permitted  to  show  the  kind  of  crops  the  land 
can  produce,  the  average  yield  per  acre  on  the  land  in 
dispute  and  on  other  similar  lands  in  the  immediate 
vicinity  cultivated  in  like  manner,  the  stage  of  growth  of 
the  crops  at  the  time  of  the  injury  or  destruction,  the  ex- 
penses of  cultivating,  harvesting,  and  marketing  the 
crops,  and  the  market  value  at  the  time  of  the  maturity 
of  the  crop,  or  wdthin  a  reasonable  time  after  the  injuiy 
or  destruction.^-  The  reason  for  admitting  evidence  of 
market  value  of  the  crop  is  not  that  the  plaintiff  can 
recover  such  value  in  toto,  but  that  ascertaining  the 
market  value  will  aid  in  placing  the  value  of  the  growing 
crops  at  the  time  of  the  injury. 

Sometimes,  however,  the  rule  is  laid  down  that,  where 
crops  are  destroyed,  the  measure  of  damages  is  the  dif- 
ference between  the  market  value  of  the  land  inunediately 
before  and  after  the  injury.^* 

It  has  sometimes  been  contended,  where  lands  having 
upon  them  growing  crops  are  flooded,  and  the  crops  in- 
jured or  destroyed,  that  the  measure  of  damages  is  only 

siderably  to  the  value  of  the  pre-  from  which  the  rule  as  to  evidence, 

mises." — Mitchell     v.     Billingsley,  above  stated,  is  taken  almost  ver- 

(1850)   17  Ala.  391.  batim;     Teller    v.    Bay    &    River 

31 — Colorado,  etc.,  Co.  v.  Hart-  Dredging    Co.,    (1907)     151    Calif, 

man,  (1894)   5  Colo.  App.  150,  38  209,  90  Pac.  942,  12  L.  R.  A.  (N. 

Pac.  62.  S.)    267. 

32— Lester  v.  Highland  Boy  Gold  33— Drake   v.    Chicago,   R.   I.   8c 

^Gni^g   Co.,    (1904)    27   Utah  470,  P.    R.    Co.,    (1884)    63   la.   302,   19 

76  Pac.  341,  101  Am.  St.  Rep.  988,  N.  W.  215,  50  Am.  Rep.  746. 


320  LAW  OF  DAMAGES 

the  rental  value  of  the  land,  but  this  contention  is  unsound 
and  is  not  sustained.^* 

Where  a  mineral  is  wrongfully  taken  from  the  land, 
the  usual  measure  of  damages  is  the  value  of  the  mineral 
in  place  at  the  time  of  the  beginning  of  the  operation  of 
mining,  in  the  absence  of  willfulness.^^ 

In  case  of  the  wrongful  destruction  of  a  building  on 
the  land  of  the  plaintiff,  recovery  of  the  actual  value  of 
the  building  is  usually  allowed ;  ^^  although  some  courts 
lay  down  the  rule  that  the  measure  of  damages  is  the  dif- 
ference between  the  value  of  the  realty  as  it  was  before 
the  destruction  of  the  building  and  after.^^  Perhaps  it 
will  usually  make  little  difference  which  rule  is  applied ; 
but,  in  some  cases,  the  difference  between  the  operation 
of  the  two  rules  would  be  very  great.  It  has  been  held 
that  the  rule  giving  the  amount  of  diminution  in  value  of 
the  realty  should  be  applied  only  for  the  purpose  of 
giving  the  owner  fuller  compensation  for  the  loss.^^  It 
is  the  actual  value  of  the  building,  and  not  its  market 
value,  that  is  taken  as  the  measure  of  damages.^'  In 
arriving  at  such  actual  value,  it  is  proper  to  take  into 
account  the  original  cost  of  the  house,  the  cost  of  replac- 
ing it,  and  its  age  and  depreciation  in  value.*^ 

34 — Folsom  v.  Apple  River  Log  Keys  v.  Pittsburg  &  W.  Coal  Co., 

Driving   Co.,    (1877)    41    Wis.   602.  (1&98)  58  O.  St.  246,  50  N.  E.  911, 

"The  hay  was  partly  grown  when  41  L.  R.  A.  681,  65  Am,  St.  Rep. 

injured  or  destroyed,  and  it  seems  754.    See  Martin  v.  Porter,  (1839) 

to  ua  that  the  net  presumed  value  5  M,  &  W,  351,  151  Eng.  Repr,  149, 

of  the  hay,  less  its  actual  value,  17  E.  R.  C.  841. 

measured  the  actual  damages  sus-  36 — Kent     County     Agricultural 

tained."     This  is  perhaps  not  the  Society   v.   Ide,    (1901)    128   Mich, 

clearest  statement  of  the  law,  but  423,  87  N.  W.  369. 

it  seems  certain  that  the  court  is  37 — ^Brinkmeyer        v.        Bethea, 

merely  invoking  the  usual  rule  for  (1904)  139  Ala.  376,  35  So.  996. 

cases  of  injury  to  crops.     See  also  38 — ^Id. 

Benjamin  v.   Benjamin,    (1843)    15  39 — McMahon    v.    City    of    Du- 

Conn.  347,  39  Am.  Dec.  384.  buque,  (1898)  107  la.  62,  77  N.  W. 

35— Maye  v.  Yappan,   (1863)   23  517,  70  Am.  St.  Rep.  143. 

Cal.  306;  Domovan  v.  Consolidated  40— Wall    v.    Piatt,    (1897)     169 

Coal    Co.,    (1900)    187    111.    28,    58  Mass.  398,  48  N.  E.   270. 
N.  E.  290,   79   Am.   St.   Rep.   206; 


TORTIOUS  DAMAGE  TO  REALTY  321 

179.  Removal  of  Lateral  and  Subjacent  Support. — 

Where  the  lateral  or  subjacent  support  of  land  is  wrong- 
fully removed,  the  amount  of  damages  is  found,  not  by 
computing  the  damage  to  a  small  strip  directly  affected, 
but  by  computing  the  diminution  in  value  of  plaintiff's 
whole  tract.'*^ 

180.  Nominal  Damages. — Although  the  owner  of  land 
may  suffer  little  or  none  from  a  trespass,  he  is  entitled 
to  nominal  damages  at  least.*^  Where  a  trespass  to 
realty  is  accompanied  by  no  actual  damage,  it  is  never- 
theless often  of  very  great  importance  that  the  owner  be 
entitled  to  maintain  an  action,  in  which  he  may  get  nom- 
inal damages,  for  the  purpose  of  establishing  his  right 
not  to  have  the  trespass  of  the  defendant  repeated.  In 
many  instances,  the  only  purpose  of  the  plaintiff  in  bring- 
ing his  action  is  to  establish  his  title  to  the  premises  by  a 
recovery  of  nominal  damages.*^ 

Where  the  trespass  has  resulted  in  no  damage,  but  has 
been  of  positive  benefit  to  the  land,  as  in  the  case  of  the 
filling  up  of  a  low  vacant  lot  by  the  trespasser,  it  has 
been  held  that  the  cost  of  restoring  the  lot  to  its  former 
condition  cannot  be  made  the  measure  of  damages,  and 
that  only  nominal  damages  can  be  assessed.^^ 

But  where  the  defendant  has  entered  and  occupied  the 
plaintiff's  close,  the  damages  are  the  value  of  the  use  of 
the  property  during  the  continuance  of  the  trespass.*" 

181.  Remote  and  Uncertain  Damages. — Here,  as  in 
other  fields,  the  requirements  of  proximity  and  certainty 

41 — ^Parrott     v.     Chicago     Great  43 — Webb    v.    Portland    Cement 

Western   Ey.    Co.,    (1905)    127    la.  Mfg.  Co.,  (1838)  3  Sumn.  189,  Fed. 

419,   103   N.  W.  352.  Case.   No.    17,322. 

42— Dixon    v.    Clow,    (1840)    24  44r— Murphy  v.  City  of  Fond  du 

Wend.    (N.    Y.)    188.      The    owner  Lac,   (1868)    23   Wis.   365,  99  Am. 

may     recover     nominal      damages  Dec.  181. 

where  the  trespasser  has  repaired  45 — McWilliams       v.       Morgan, 

the    injury.      Jewett    v.    Whitney,  (1874)    75  111.  473. 
(1857)    43   Me.    242. 

Bauer  Dam. — 21 


322  LAW  OF  DAMAGES 

apply.  Damages  cannot  be  recovered  for  injuries  that 
are  remote  results  of  the  trespass  upon  the  land  or  that 
cannot  be  proved,  with  a  proper  degree  of  certainty,  to 
be  proximate  results  of  the  defendant's  wrong.**^  For 
instance,  the  plaintiff  cannot  recover  for  damage  result- 
ing proximately  from  his  own  neglect  after  the  trespass ; 
and  he  cannot  recover  for  the  expense  of  looking  after 
the  trespassers.  The  fact  that,  if  the  land  had  not  been 
damaged  by  defendant,  plaintiff  might  have  divided  it 
into  lots  and  sold  it  for  homes,  has  been  held  immaterial, 
on  the  ground  that  such  damage  is  too  remote  and  specu- 
lative.*^ 

182.  Willfulness. — If  the  trespasser  has  acted  willfully, 
he  is  usually  held  liable  for  the  value  of  any  chattel  he 
has  made  from  anything  he  has  wrongfully  severed  from 
the  land  and  taken,  without  any  allowance  for  his  labor ;  *^ 
but  this  is  not  so,  if  he  has  acted  mistakenly  and  not 
willfully.*^  In  Wisconsin,  there  is  also  a  statutory  rule 
of  damages,  penalizing  the  willful  cutting  of  timber ;  '^ 
but  this  rule  is  not  construed  as  applying  to  bona  fide 
purchasers  of  logs  made  from  the  timber  taken.^*  Like- 
wise, it  has  been  held  that  a  statutory  high  measure  of 
damages  to  penalize  the  cutting  of  another's  timber,  does 
not  apply  to  a  mistaken  cutting.^^ 

46 — ^Longfellow       v.       Quimby,  the  same  shall  have  been  at   any 

(1848)    29   Me.    196,   48   Am.    Dec.  time    before    the    trial,   while    in 

525.  possession  of  the  trespasser,  or  any 

47 — Stonegap     Colliery     Co.     v.  purchaser    from    him    with    notice, 

Hamilton,   (1916)    119  Va.  271,  89  shall  be  awarded   to  the  plaintiff, 

S.  E.  305,  Ann.  Cas.  1917  E  60.  if   he   shall  succeed."     Rev.   Stat. 

48— White    v.    Yawkey,     (1896)  4269. 

108  Ala.   270,  19  So.  360.  51— Wright  v.  E.  E.  Bolles,  etc., 

49— Id.  Co.,   (1880)   50  Wis.   167,  6  N.  W. 

50 — In  Wisconsin,  the  statutory  508. 

rule    is    that    the    highest    market  52 — Watkins  v.  Gale,   (1851)    13 

value    of   logs    wrongfully   cut    by  111.     152;     Batchelder     v.     Kelly, 

defendant,   "in   whatsoever   place,  (1839)   10  N.  H.  436,  34  Am.  Dee. 

shape,  or  condition,  manufactured,  174. 


TORTIOUS  DAMAGE  TO  REALTY  323 

Where  a  defendant  has  wrongfully  and  willfully  occu- 
pied plaintiff 's  land  and  raised  a  crop  thereon,  the  plain- 
tiff may  recover  the  value  of  the  crop ;  and,  if  the  value 
of  the  land  is  diminished,  he  may,  of  course,  also  recover 
for  the  diminution.^ ^ 

183.  Aggravation. — Wrongful  acts  done  in  connection 
with  the  trespass  may  be  considered  in  aggravation. 
Manifestations  of  insult  and  other  obnoxious  conduct  of 
the  defendant,  may  properly  cause  a  jury  to  regard  the 
trespass  as  being  aggravated.  It  has  been  held  that  even 
the  malicious  arrest  of  the  owner  of  the  land,  in  order  to 
keep  him  out  of  the  way  during  the  trespass,  is  proper 
to  be  shown  in  aggravation  of  damages.^* 

184.  Mitigation. — Genuinely  compensatory  elements  of 
damage  to  realty  cannot  be  mitigated  by  showing  circum- 
stances indicative  of  a  good  purpose  on  the  part  of  the 
trespasser.^ ^  It  is  usually  held  that  not  even  benefits  by 
defendant 's  trespass  can  be  set  up  in  mitigation  of  actual 
damages.^^  Lack  of  willfulness  and  malicious  intention 
will  not  mitigate  purely  compensatory  damages,^"^  al- 
though it  prevents  the  assessment  of  exemplary  dam- 
ages.^ 

53 — Kieman    v.    Heaton,    (1886)  passer  cannot,  in  any  event,  when 

69  la.  136,  28  N.  W.  478;   Negley  compensation  is  sought  for  his  tres- 

V.    Cowell,    (1894)    91    la.    256,   59  pass,  be  heard  to  say  in  defense, 

N.  W.  48,  51  Am.  St.  Kep.  344.  or    even    in    mitigation,    that    he 

-    54 — Druse  v.  Wheeler,  (1871)  22  has    really    benefited    the    plaintiff 

Mich.  439.     This  might  seem  ques-  by    his   wrongful   acts;    he   cannot 

tionable,    as     false     imprisonment  thrust  benefits  upon  the  landowner 

would   be    ground    for   a   different  and    then    set    up    the    benefits    in 

and   separate   action.  reduction  of  the  damage  caused  by 

55— Bliss     V.     Ball,     (1868)     99  these   acts. "— Pinney   v.   Town   of 

Mass.    597,   holding  that    the   fact  Winchester,    (1910)    83   Conn.   411, 

that    plaintiff's    shade    trees,    de-  76  Atl.  994. 

stroyed  by   defendant,   caused   de-  57 — Hazelton    v.    Week,    (1880) 

fendant's   house   to   be    damp   and  49  Wis.  661,  35  Am.  Rep.  796. 
unhealthy,  could  not  be  shown  in  58 — Adams  v.  Lorraine  Mfg.  Co., 

mitigation.  (1908)  29  R.  I.  333,  71  Atl.  180. 

56 — '"The    rule   is    that   a   tres-  The   mere   fact   that   a  trespass 


324  LAW  OF  DAMAGES 

CASE  ILLUSTRATIONS 

1.  Defendant  wrongfully  entered  plaintiff's  land  and  made 
deep  excavations  on  about  one-fourth  acre,  out  of  a  tract  of  six 
or  seven  acres.  Plaintiff  may  recover  for  his  loss  to  the  entire 
tract ;  and  he  may  recover  his  entire  loss  in  one  action,  such  loss 
being  the  depreciation  in  the  market  value  of  his  land,  caused  by 
the  injuries.^^ 

2.  Defendants  unlawfully  built  a  dam  and  dug  a  trench  on 
the  premises  of  plaintiffs,  "The  plaintiffs  could  at  any  time 
have  removed  the  dam  and  filled  up  the  trench.  *  *  *  The 
defendants  could  not  have  entered  to  do  either  without  being 
guilty  of  another  trespass.  The  damages  which  the  plaintiffs 
were  entitled  to  recover,  therefore,  were  the  expenses  of  remov- 
ing the  dam  and  filling  up  the  trench,  and  of  restoring  the 
premises  to  their  former  condition,  and  the  loss  of  the  use  of 
them  during  the  time  which  this  would  reasonably  require."^" 

3.  In  November,  defendants  wrongfully  removed  portions  of 
a  stone  wall  enclosing  plaintiff's  land.  The  breaches  were  not 
repaired  by  plaintiff  till  after  the  middle  of  the  succeeding  May. 
In  the  meantime,  the  cattle  of  plaintiff  and  others  passed  into 
the  close  and  fed  upon  the  grass,  injuring  plaintiff's  hay  crop. 
Plaintiff  can  recover  for  the  cost  of  repairing  the  wall,  but  not 
for  the  injury  to  the  hay.^^ 

4.  Plaintiff  had  an  easement  to  run  a  water  pipe  through 
defendant's  land.  Defendant  cut  plaintiff's  water  pipe  and 
stopped  his  supply  of  water.  Plaintiff  was  without  water  for 
some  time,  and  then  went  to  the  expense  of  procuring  a  supply 
from  another  source.  Defendant  cannot  complain  of  an  instruc- 
tion to  the  effect  that  plaintiff  may  recover  the  expense  of  re- 
pairing and  relaying  the  pipe,  the  damage  from  the  deprivation 
of  water  from  his  house  for  the  time  that  elapsed,  and  the 
reasonable  cost  of  supplying  the  water.^^ 

to  realty  is  willful,  does  not  con-  60 — Cavanagh  v.  Durgin,   (1892) 

stitute  proof  that  it  is  malicious,  156  Mass.  466,  31  N,  E.  643. 

so  as  to  justify  the  assessment  of  61 — Loker  v.  Damon,   (1835)    17 

exemplary    damages.      Kieman    v.  Pick.    (Mass.)    284. 

Heaton,   (1886)    69  la.  136,  28  N.  62— Reynolds      v.      Braithwaite, 

W.  478.  (1890)    131  Pa.  416,  18  Atl.  1110. 

59 — Chicago,  K.  &  W.  R.  Co.  v. 
Willets,  (1891)  45  Kan.  110,  25 
Pac.  576. 


TORTIOUS  DAMAGE  TO  REALTY  325 

5.  Defendant  encroached  on  lajid  of  plaintiff  by  the  erection 
of  a  wall.  "The  plaintiff  will  recover,  not  the  full  value  of  the 
land,  but  the  damage  he  sustains  in  being  deprived  of  its  use; 
and  such  damage  will  be  limited  to  past  time.^^ 

6.  Defendant,  a  canal  company,  by  negligently  permitting 
water  to  flow  from  the  sides  of  its  canal,  flooded  plaintiff's  rice 
fields,  preventing  the  use  of  the  land.  Plaintiff  could  recover 
a  fair  rental  value  of  the  land  from  the  date  of  overflow  to  the 
bringing  of  the  action.  "Loss  or  damage  accruing  after  the 
action  could  not  be  recovered  in  this  suit."  Plaintiff  cannot  re- 
cover for  the  outlay  made  by  him  for  the  cultivation  of  land 
which  he  knew  to  be  submerged  so  that  he  could  not  culti- 
vate it.^* 

7.  Defendant  threw  stone  and  earth  into  the  mouth  of  a  small 
stream  that  usually  discharged  into  a  canal,  whereby  water  was 
dammed  and  flowed  back  on  plaintiff's  land,  so  that  six  or  seven 
acres  could  not  be  planted.  The  condition  continued  for  three 
years.  Held,  in  an  action  on  the  case,  that  the  true  measure  of 
damages  is  ' '  the  fair  rental  value  of  the  ground  which  was  over- 
flowed, and  not  the  possible,  or  even  the  probable  profits  that 
might  have  been  made,  had  the  land  not  been  overflowed.  Such 
damages  are  too  remote  and  speculative,  depending  on  too  large 
a  variety  of  contingencies  which  might  never  have  happened. ' '  ^ 

8.  Defendant  wrongfully  entered  plaintiff's  land  and  cut  and 
removed  timber.  Held,  that  plaintiff  is  entitled  to  recover  the 
value  of  the  timber  taken,  but  is  not  entitled  to  further  dam- 
ages by  reason  of  the  fact  that  the  tree  tops  were  left  upon. 
the  land.^^ 

9.  Defendant  trespassed  on  plaintiff's  land  and  cut  and  car- 
ried away  his  trees.  No  willfulness  of  defendant  is  reported. 
"The  time  measure  of  damages  is  the  amount  of  injurj^  which 
the  plaintiff  has  actually  suffered  from  the  whole  trespass.  If 
the  trees  were  worth  no  more  to  the  plaintiff  to  stand  than  to  the 
defendant  to  be  cut  into  timber  at  that  time,  their  value  as 

63— McGann  v.  Hamilton,  (1889)  65 — City  of  Chieaga  v.  Huener- 

58  Conn.  69,  19  Atl.  376.     See  also  bein,    (1877)    85  lU.   594,  28    Am. 

McWilliams  v.  Morgan,   (1874)    75  Eep.  626. 

111.   473.  66— Nelson     v.     Big     Blaekfoot 

64— Savannah  &  O.  Canal  Co.  v.  Milling  Co.,   (1896)    17  Mont.  553, 

Bourquin,    (1874)    51    Ga.   378.  44  Pac.  81. 


LAW  OF  DAMAGES 

timber,  with  the  reasonable  expense  of  cutting  deducted,  was 
the  measure  of  the  injury  which  was  done  to  the  plaintiff  by 
cutting  them. ' '  It  was  further  held  erroneous  to  allow  the  plain- 
tiff to  recover  a  verdict  which  included  the  value  added  to  the 
timber  by  the  defendant's  labor.^'' 

10.  Defendant's  cattle,  horses,  and  sheep  destroyed  plaintiff's 
growing  crops  of  peas,  oats,  and  corn.  Held :  in  order  to  arrive 
at  the  measure  of  damages,  it  is  proper  to  admit  testimony  of  the 
plaintiff,  a  farmer  usually  growing  such  crops,  as  to  the  value 
of  the  crop  he  would  have  had  but  for  the  trespass  and  the 
value  of  the  crop  he  did  have.^® 

11.  Defendant  inadvertently  mined  coal  underlying  plaintiff's 
land.  Plaintiff  is  entitled  to  the  value  of  the  coal  at  the  pit 
mouth,  less  the  cost  of  carrying  it  there  from  the  place  where  it 
was  dug,  allowing  defendant  nothing  for  the  digging.^^ 

12.  Defendant,  in  good  faith,  mined  coal  under  plaintiff's  land. 
The  measure  of  damages  is  the  value  of  the  coal  in  place  at  the 
time  it  was  mined.  "The  severing,  removing,  screening,  and 
marketing  the  coal  should  be  treated  as  one  continued  trans- 
action, and  the  defendant  charged  with  its  value  at  the  time  he 
began  to  mine  it."  Its  quality,  thickness,  and  situation  with 
reference  to  mining  and  marketing  facilities,  must  be  considered ; 
and  doubtless  other  circumstances.'^® 

13.  Defendant,  in  working  his  coal  mine,  broke  through  the 
barrier,  and  worked  the  coal  under  plaintiff's  land,  and  raised  it 
for  purposes  of  sale.  Held,  in  trespass,  that  the  measure  of 
damages  is  the  value  of  the  coal  so  raised,  without  deducting 
the  expense  of  getting  it."^^ 

14.  A  trespassed  upon  B's  mining  claim,  taking  away  gold- 
bearing  earth.  The  trespass  was  not  willful  or  with  malicious 
intent.  Action  is  brought  for  the  injury  tt>  the  land  itself.  ' '  The 
proper  measure  of  damages,  in  a  case  like  the  present,  is  the  value 

67— Foote  V.   Merrill,   (1874)    54  70— Keys     v.     Pittsburg    &     W. 

N.  H.  490,  20  Am.  Rep.  151.  Coal  Co.,   (1898)   98  O.  St.  246,  50 

68— Seamans    v.    Smith,    (1866)  N.  E.  911,  41  L.  R.  A.  681,  65  Am. 

46   Barb.    (N.   Y.)    320.  St.  Rep.   754. 

69 — Donovan      v.      Consolidated  71 — Martin   v.   Porter,    (1839)    5 

Coal  Co.,  (1900)   187  111.  28,  58  N.  M.  &  W.  351,  151  Eng.  Repr.  149, 

E.  290,  79  Am.  St.  Rep.  206.  17  E.  R,  C.  841. 


TORTIOUS  DAMAGE  TO  REALTY  327 

of  the  gold-bearing  earth  at  the  time  it  was  separated  from 
the  surrounding  soil  and  became  a  chattel. ' '  "^^ 

15.  Agents  of  defendant  entered  plaintiff's  home  at  an  open 
door,  and  changed  the  old  gas  meter  for  a  new  one.  Plaintiff 
can  get  nominal  damages  only.'^^ 

16.  Defendant  gas  company's  agents  broke  open  plaintiff's 
cellar  door  and  took  out  a  meter  belonging  to  defendant. 
"Merely  nominal"  damage  was  done  to  the  lock  and  door.  A 
verdict  for  $150  is  not  excessive,  even  for  purely  compensatory 
damages.  "Compensatory  damages  embrace  the  determination 
of  the  extent  of  the  injury,  insult,  invasion  of  the  privacy,  and 
interference  with  the  comfort  of  the  plaintiff  and  his  family."  "^^ 

17.  Plaintiff  owned  the  fee  of  a  street.  Defendant  city's  right 
in  the  street  was  an  easement.  Defendant  graded  the  street. 
Plaintiff  can  recover  only  nominal  damages.'^ ^ 

18.  Defendant,  in  possession  of  plaintiff's  land,  under  a  hona 
fide  claim  of  title,  cut  plaintiff's  trees,  and  made  them  into  rails, 
which  he  used  in  fencing  the  land  from  which  they  were  cut. 
Plaintiff  can  recover  nominal  damages  only.''*^ 

19.  Defendants  prevented  plaintiff  from  exercising  his  rights 
under  an  easement  to  have  a  certain  supply  of  water  flow  from 
defendants'  land  to  plaintiff's  land.  Being  deprived  of  his 
water  supply,  plaintiff  made  large  expenditures  in  searching 
for  and  developing  water.  Held,  that  such  expenditures  are  not 
proper  elements  of  damage,  "There  was  no  showing  that  the 
improvements  varied  the  difference  in  the  value  of  the  land  with 
and  without  the  water  or  the  difference  in  the  rental  value. ' '  '^^ 

20.  Plaintiff,  in  possession  of  a  residence,  by  virtue  of  her 
right  as  widow,  was  wrongfully  expelled,  *  *  The  damages  which 
are  to  be  allowed  in  eases  of  this  character  are,  first,  any  actual 
damages  which  may  have  resulted  to  the  plaintiff  because  of  her 
expulsion  from  the  premises,  including  damages  to  her  health, 
and  those  referable  to  pain  and  suffering,  such  as  was  the  natural 

72— Maye  v.  Yappen,  (1863)   23  75— Wood  v.   City  of  Williams- 

CaL  306,  burgh,    (1864)    46    Barb.    (N.    Y.) 

73 — ^Forteseue  v.   Kings   County  601. 

Lighting    Co.,    (1908)     112    N.    Y.  76— Clark  v.  Hart,  (Miss.  1887) 

Supp.  1010,  128  App.  Div.  826.  3  So.  33. 

74— Reed  v.  New  York  &  R.  Gas  77— Cheda  v.  Bodkin,  (1916)  173 

Co.,    (1904)    87    N,   Y.    Supp.    810,  Cal.  7,  158  Pac.  1025. 
93  App.  Div.  453. 


326  LAW  OF  DAMAGES 

and  probable  result  of  the  -wrongful  act  of  the  trespasser.  In 
addition  thereto,  evidence  that  the  trespass  was  willful,  and 
all  circumstances  of  aggravation  attendant  thereon,  may  be 
given  in  evidence,  to  be  weighed  by  the  jury  in  determining,  not 
alone  what  would  compensate  the  plaintiff  for  the  injury  that 
she  has  sustained,  but  for  the  purpose  of  allowing  such  damages 
as,  in  their  judgment,  would  deter  the  wrongdoer  from  a  repeti- 
tion of  the  trespass. ' '  "^^ 

78 — Stevens    v.    Stevens,    (1895) 
96  Ga.   374,  23   S.   E.   312. 


CHAPTER  XLI 
Tortious  Damage  Pertaining  to  Personalty 

185.  In  General. — A  tortious  injury  pertaining  to  per- 
sonalty may  consist  of  a  taking,  a  detention,  or  a  com- 
plete destruction,  of  a  chattel,  or  an  infliction  of  damage 
upon  it.  A  tort  may  result  in  either  a  permanent  or  a 
temporary  loss  of  a  chattel,  and  it  may  cause  either  a 
loss  of  the  entire  chattel  or  a  mere  diminution  in  its  value. 
Permanency  and  completeness  of  loss  coincide  in  a  case 
in  which  the  chattel  has  been  completely  destroyed  or 
has  been  converted  and  retained;  but,  in  the  latter  case, 
the  owner  may  elect,  by  bringing  replevin,  to  assert  his 
right  to  have  the  chattel  returned,  thus  showing  his  elec- 
tion not  to  consent  to  the  permanency  of  the  deprivation. 
The  loss  may  be  partial,  but,  at  the  same  time,  permanent, 
as  where  A  has  lamed  B's  horse  permanently;  since 
a  portion  of  the  horse 's  value  is  taken  away  for  all  time. 
The  loss  of  a  chattel  may  likewise  be  complete,  but  tem- 
porary; as  in  the  case  where  A  has  wrongfully  taken 
away  B's  horse  and  detained  him  for  a  month,  at  the 
end  of  which  time  A  returns  him  and  B  receives  him. 
The  loss  may  be  both  partial  and  temporary,  as  where 
A,  a  bailee  of  B's  horse,  negligently  feeds  the  horse  too 
much  corn,  causing  him  to  be  sick  for  a  short  time,  with 
no  permanent  bad  effects.  From  all  of  this,  it  is  clearly 
apparent  that  different  measures  of  damages  must  apply 
to  different  cases  of  torts  pertaining  to  chattels. 

The  usual  actions  for  tortious  injuries  pertaining  to 
personalty  are  trespass,  trespass  on  the  case,  trover,  and 
replevin;  but  the  owner  may  waive  the  tort  and  sue  in 
assumpsit,  on  the  theory  of  a  quasi-contractual  relation. 

329 


330  LAW  OF  DAI\IAGBS 

Trespass  de  bonis  asportatis  is  grounded  merely  upon  a 
wrongful  carrying  away  of  the  plaintiff's  goods;  trover 
and  replevin  are  based  upon  a  wrongful  taking.  In  some 
instances,  the  owner  may  maintain  any  one  of  several 
forms  of  action.  His  choice  of  a  remedy  sometimes  has 
some  effect  upon  the  measure  of  damages,  for  he  is  not 
asking  for  damages  to  compensate  him  for  any  elements 
of  damage  or  injury  that  cannot  be  set  up  and  claimed  in 
the  form  of  action  he  has  elected.  Some  more  or  less 
arbitrary  rules  as  to  damages  help  to  make  the  choice  of 
a  remedy  of  much  importance  in  some  instances ;  for  in- 
stance, in  trover,  it  is  usually  held  that  the  plaintiff  can- 
not recover  exemplary  damages,^  but  trespass  is  a  form 
of  action  in  which  exemplary  damages  are  very  fre- 
quently allowed. 

186.  Damages  for  Total  ajid  Permanent  Loss  of  a  Chat- 
teL — Where  the  defendant  has  converted  the  personalty 
of  the  plaintiff  to  his  own  use,  to  the  total  loss  of  the 
plaintiff,  the  usual  measure  of  damages  in  trover  is  the 
total  value  of  the  thing  converted,  plus  interest  from  the 
time  of  the  conversion.^  Only  if  the  loss  of  the  plaintiff 
is  total  is  he  entitled  to  recover  the  whole  value  of  his 
chattel.  If  the  chattel  has  been  only  damaged  by  the 
defendant's  acts  in  connection  with  his  conversion,  so 
that  the  loss  is  only  partial,  and  if  the  chattel  has  been 
received  back  by  the  plaintiff,  the  owner,  it  of  course 
follows  that  the  measure  of  damages  cannot  include  the 
total  value  of  the  chattel.  In  such  a  case,  the  amount  of 
damages  to  be  assessed  depends  upon  the  amount  of  dam- 
age actually  done. 

187.  Value. — In  trover,  where  the  loss  of  the  converted 
article  is  complete,  or  where  the  owner  elects  to  permit 

1— Baldwin  v.  Porter,  (1838)  12  (1877)  69  N.  Y.  448;  John  V.  Far- 
Conn.  473.  well  Co.   v.  Wolf,   (1897)    96  Wis. 

2— Hurd  V.  Hubbell,  (1857)  26  10,  70  N.  W.  289,  37  L.  B.  A.  138. 
Conn.    389;     Wehle    v.    Haviland, 


TORTIOUS  DAMAGE  TO  PERSONALTY  331 

possession  to  remain  in  the  tortfeasor  and  to  let  hinn  take 
title  by  virtue  of  the  plaintiff's  election  and  suit,  the 
measure  of  damages  is  the  value  of  the  article  at  the  time 
of  the  wrongful  taking.^  In  order  to  get  an  understand- 
ing as  to  the  method  of  arriving  at  such  value,  it  is  neces- 
sary that  we  consider  the  first  great  purpose  of  the  action, 
which  is  to  compensate  the  plaintiff  for  the  loss  which 
he  has  sustained.  A  market  price,  set  by  occurrences  in 
exchanges  and  mercantile  centers,  may  be  the  proper 
measure  of  compensation,  and  it  may  not.  The  fair  cash 
value  of  shares  of  stock  in  a  going  corporation  is  usually 
fixed  by  the  price  at  which  they  sell  in  the  market,  and 
not  by  the  value  of  the  property  of  the  corporation.* 
Usually,  the  market  price  is  the  sum  for  which  the  owner 
can  replace  the  chattel  taken ;  but  the  market  price  is  very 
far  from  being  a  universal  measure  of  damages.  It  may 
and  often  does  happen  that  the  plaintiff,  for  some  reason, 
can  replace  the  goods  for  a  sum  less  than  the  retail  mar- 
ket price,  in  which  event  the  value  to  him  of  the  goods 
he  has  lost  is  such  lesser  sum.  This  is  true  in  the  case  of 
the  conversion  of  the  goods  of  a  merchant  who  is  in  a 
position  to  procure  goods  at  wholesale,  although  the  tak- 
ing of  the  same  goods,  if  owned  by  another  person,  might 
result  in  the  assessment  of  the  full  retail  market  price  as 
damages,  because  that  would  be  the  amount  which  the 
owner  would,  in  such  a  case,  be  damaged.^    In  the  usual 

3 — Hurd  V.  Hubbell,  supra.  "Actual  values  are  based  upon 

"The   market   value   is  at  least  existing   states    of   fact,  not  upon 

the    highest    price    that    a    normal  hypotheses;    and   the  actual   value 

purchaser  not  under  peculiar  com-  of  shares  in  a  going  concern  de- 

pulsion  will  pay  at   the  time  and  pends  not  only  upon  its  property, 

place  in   question  in  order  to  get  but  also  upon  its  prospects,  since 

the     thing." — Holmes,    C.    J.,    in  shares  both  represent  property  and 

Bradley    v.     Hooker,     (1900)     175  prospects." — Holmes,    J.,    in    Na- 

Mass.  142,  55  N.  E.  848.  tional  Bank  of  Commerce  v.  New 

4^-"  As    a    rule,    the    fair    cash  Bedford,  (1892)   155  Mass.  313,  29 

value   of   shares   having  a   market  N.  E.  532. 

is  best  ascertained  by  finding  the  5 — Wehle  v.  Haviland,  (1877)  69 

price    at    which    they   sell   in   the  N.  Y.  448. 
market.    ♦     *     • 


332  LAW  OF  DAMAGES 

case,  the  value  of  the  goods  to  the  owner,  and  therefore 
his  loss  in  the  event  of  their  conversion,  is  the  amount  it 
would  cost  him  to  replace  them  with  exactly  similar 
goods,  which  is  the  market  price  at  the  time  and  place  of 
conversion.  There  are,  however,  some  cases  in  which  the 
value  of  the  chattel  is  clearly  not  the  amount  it  would  cost 
to  purchase  another  like  it  on  the  market.  The  article 
may  have  a  peculiar  value  to  the  owner,  difficult  to  com- 
pute, but  very  much  more  than  its  original  cost,  its  mone- 
tary value  at  the  time  of  conversion,  or  the  cost  of  re- 
placement with  a  similar  article.  Indeed,  in  many  in- 
stances, the  article  may  have  no  market  value  and  no 
value  of  any  kind,  except  to  the  owner;  but,  under  such 
circumstances,  it  is  not  to  be  supposed  that  the  owner 
cannot  get  substantial  damages.^  Sentiment  of  the  owner 
is  to  be  accorded  some  consideration.'^  If  the  only  or 
principal  value  of  the  article  to  the  owner  is,  not  its 
market  value,  but  its  peculiar  value  to  him,  he  is  not  re- 
stricted to  the  market  value,  and  may  recover  such  pecu- 
liar value,  which  is,  of  course,  from  the  nature  of  the 
case,  somewhat  difficult  to  estimate.  The  loss  of  an  old 
article  is  often  a  much  greater  loss  than  would  result 
from  a  taking  of  money  in  an  amount  equal  to  its  market 
value;  for  difficulty  and  expense  of  replacement  by  an- 
other article,  perhaps  new,  must  be  considered. 

Where  defendant  has  converted  plaintiff's  household 
goods  or  clothing,  the  measure  of  damages  is  not  the 
mere  amount  for  which  plaintiff  could  have  sold  the  goods 
in  the  market,  as  this  amount  would  often  be  very  inade- 

6 — "Suppose    a   rod    of   railway  (1874)    12   Kan.   54,   15  Am.   Kep, 

track,  or  a  shade  tree,  or  a  fresco  362.     See  also  Sinclair  v.  Stanley, 

painting    on    the   walls    or    ceiling  (1885)   64  Tex.  67. 

of  a  house,   or  a  bushel   of   com  7 — Jacksonville,  etc.,  Ry.  Co.  v. 

on   the   western   plains,   should   be  Peninsular,  etc.,  Co.,  (1891)  27  Fla. 

destroyed,    could   there    be    no    re-  1,  9  So.  661,  17  L.  R.  A.  33;  Bate- 

covery    for    these    articles    simply  man    v.    Ryder,    (1901)    106   Tenn. 

because  there  might  be  no  actual  712,  64  S.  W.  48,  82  Am.  St.  Rep. 

market  value  far  the  same?"    At-  910. 
chison,  T.,  etc.,  R.  Co.  v.  Stanford, 


Tortious  damage  to  personalty       33s 

quate;  but  the  true  measure  is  plaintiff's  actual  money 
loss,  with  due  consideration  of  all  circumstances  result- 
ing from  the  loss  of  his  property,  but  not  including  any 
sentimental  or  fanciful  value  placed  upon  it  by  plaintiff.^ 

Where  defendant  has  converted  plaintiff's  stereotype 
plates,  used  and  possible  of  being  used  for  the  printing 
of  labels  and  advertisements  in  plaintiff's  business,  it  is 
very  clear  that  any  kind  of  market  value  may  be  a  very 
inadequate  measure  of  the  plaintiff's  damage.  In  such  a 
case,  the  plaintiff  should  allege  and  prove,  and  may  re- 
cover for,  any  unusual  damage  which  he  may  have  suf- 
fered, such  as  obstruction  of  his  business,  if  it  be  a  proxi- 
mate result  of  the  wrong.® 

Because  the  plaintiff  can,  unless  the  convertor  has 
changed  the  nature  of  the  chattel,  replevy  it,  even  if  the 
wrongdoer  has  added  value  to  it,  it  is  sometimes  held 
that,  if  he  elects  to  bring  trover,  the  owner  may  recover 
the  increased  value  of  the  chattel;*^  but  some  holdings 
are  otherwise.^^  "Willfulness  is,  according  to  the  weight 
of  authority,  important  in  these  cases.  If  there  be  no  will- 
fulness, it  is  usual  to  permit  recovery  of  only  the  value 
of  the  chattel  at  the  time  of  the  conversion.^ ^ 

Where  the  market  value  fluctuates,  a  number  of  courts 
have  allowed  the  highest  market  value  between  the  time 
of  the  conversion  and  the  time  of  the  trial.^^  This  rule, 
in  jurisdictions  where  applied,  is  of  great  importance  in 

8 — ^Barker  v.  Lewis  Storage,  etc.,  12 — Winchester  v.  Craig,  (1876) 

Co.,   (1905)    78   Conn.   198,  61  Atl.  33   Mich.   205;   Beede  v.  Lamprey, 

363,   3    Ann.   Cas.   889;   Denver   S.  (1888)    64  N.  H.  510,  15  Atl.  133, 

P.  &  P.  E.   Co.   V.  Frame,    (1882)  10    Am.    St.    Eep.    426. 
6  Colo.  382;  Fairfax  v.  New  York  13— Wilson   v.   Mathews,    (1857) 

Central,  etc.,  E.  Co.,  (1878)   73  N.  24    Barb.     (N.    T.)     295;    Kid    v. 

Y.  167,  29  Am.  Eep.  119.  IGtchell,  (1818)   1  Nott  &  MeCord 

9— Stickney  v.  Allen,   (1858)   10  (S.  Car.)  334,  9  Am.  Dec.  702;  Fish 

Gray   (Mass.)    352.  v.    Nethercutt,     (1896)     14    Wash. 

10 — Silsbury  v.  McCoon,    (1850)  582,  45  Pac.  44,  53  Am.   St.  Eep. 

3  N.  Y.  379,  53  Am.  Dec.  307.  892. 

11 — Dresser  Mfg.  Co.  v.  Water- 
flton,  (1841)  3  Mete.  (Mass.)  9. 


334  LAW  OF  DAMAGES 

cases  of  the  conversion  of  stocks,  bonds,  and  securities, 
since  the  fluctuation  in  their  values  is  often  very  marked ; 
and  many  of  the  cases  in  which  it  has  been  employed  are 
of  this  kind."  The  highest  market  value  of  securities 
between  the  time  of  the  conversion  and  a  reasonable  time 
after  notice  of  the  conversion  is  sometimes  said  to  be  the 
proper  measure  of  damages.^^  The  assessment  of  dam- 
ages covering  the  highest  market  value  of  a  chattel  be- 
tween the  conversion  and  the  trial,  provided  suit  is  com- 
menced and  prosecuted  within  a  reasonable  time,  is 
authorized  by  statute  in  some  states. 

It  is  very  difBcult  to  arrive  at  a  satisfactory  rule  as  to 
the  measure  of  damages  for  the  conversion  of  chattels 
that  constantly  fluctuate  in  value.  The  owner  may  be 
and  often  is  damaged  to  a  far  greater  amount  than  the 
value  of  the  chattel  at  the  time  of  the  conversion.  At  the 
time  of  the  trial,  it  is  possible  to  look  back  over  the 
interim  that  has  passed  since  the  conversion  and  to  know 
with  certainty  what  the  highest  intermediate  value  has 
been.  Since,  if  the  plaintiff's  ownership  had  not  been 
interfered  with,  he  would,  at  one  time  in  the  interim,  have 
had  a  chattel  worth  such  highest  value,  it  can  be  said  that 
he  has  lost  this  value  and  not  merely  the  value  at  the  time 
of  conversion,  if  it  exceed  the  latter.  Of  course,  it  is 
argued  that  it  is  not  certain  that  the  plaintiff  would  have 
disposed  of  the  chattel  at  this  highest  value,  so  that  it  is 
uncertain  whether  he  has  really  lost  this  amount;  to 
which  it  is  proper  to  reply  that  money  terms  are  used 
merely  as  a  convenient  and  necessary  means  of  express- 
ing the  value  of  a  chattel,  and  that  the  plaintiff  has  truly 
lost  this  highest  market  value  of  the  chattel,  whether  he 
can  prove  with  certainty  that  he  would  have  sold  it  at  this 

14— This  rule  as  to  stacks,  etc.,  1  L.  E.  A.  289,  6  Am.  St.  Eep.  356. 

is  known  as  "the  New  York  rule."  15 — Dimock  v.  United  States  Na- 

See    Baker    v.    Drake,    (1873)    53  tional   Bank,    (1893)    55   N.   J.   L. 

N.  Y.  211,  13  Am.  Rep.  507;  and  296,  25  Atl.  926,  39  Am.  St.  Rep. 

Wright  V.  Bank  of  the  Metropolis,  643. 
(1888)  110  N.  Y.  237,  18  N.  E.  79, 


TORTIOUS  DAMAGE  TO  PERSONALTY  335 

figure  or  not.  The  rule  of  highest  intermediate  value  of 
the  chattel,  especially  as  to  stocks  and  securities,  with 
their  greatly  fluctuating  values,  has  much  of  logic  to  sup- 
port it,  although  only  a  few  courts  have  followed  it. 

It  is  manifestly  impossible  to  prove  with  equal  exact- 
ness and  certainty  the  value  of  all  kinds  of  commodities. 
"VVTiile,  in  the  case  of  goods,  stocks,  or  bonds,  sold  in  an 
open  market,  where  all  buyers  and  sellers  may  come  to- 
gether, it  is  comparatively  easy  to  determine  the  value 
at  any  specified  time,  it  is  not  possible  to  settle  so  easily 
upon  the  value  of  an  article  not  of  a  class  commonly  sold 
in  the  open  market;  and  so,  in  such  cases,  it  becomes 
necessary  to  admit  the  testimony  of  witnesses  as  to  what 
the  property  would  probably  bring  under  different  con- 
ditions named,  having  due  regard  to  the  uncertainty  of 
getting  a  purchaser  at  the  highest  possible  price.  For 
instance,  where  defendant  converted  plaintiff's  old  ma- 
hogany lounge,  it  was  proper  to  admit  testimony  that, 
on  the  date  of  the  conversion,  it  was  worth  $50  to  any  one 
that  liked  antique  furniture,  but  that,  to  a  person  who  did 
not  care  for  antique  furniture,  or  at  auction,  it  would 
probably  bring  only  $15  to  $20.^^ 

188.  Losses  Less  than  a  Permanent  and  Total  Loss  of 
the  Chattel. — Compensation  being  the  principal  purpose 
of  the  law  of  damages,  and  a  loss  of  part  being  less  than 
a  loss  of  the  whole,  it  follows  that  the  measure  of  damages 
is  not  the  same  in  the  case  of  a  temporary  or  a  partial 
loss,  as  in  that  of  a  permanent  and  total  deprivation. 

16 — ' '  In  the  stock  exchange  or  bond,  there  is  an  organized  pub- 
buyers  and  sellers  are  brought  to-  lie  ready  to  buy  upon  the  antici- 
gether  in  a  focus,  with  the  result  pation  that  such  a  buyer  will  be 
that  there  is  no  danger  of  missing  found,  and  regulating  the  price 
the  highest  price  by  the  accident  which  it  will  pay,  more  or  less  by 
of  missing  the  man  who  would  give  anticipation.  There  is  no  such 
it.  Even  if  at  a  given  moment  focus  for  old  furniture.  The  an- 
there  is  no  buyer  of  the  class  that  swer  very  properly  recognized  the 
would  most  desire  a  certain  stack  uncertainty  of  encountering  a  pur- 


336  LAW  OF  DA^IAGES 

Wliere  injury  is  inflicted  upon  plaintiff^s  chattel,  not 
destroying  it,  but  diminishing  its  value,  the  plaintiff  is 
entitled  to  compensation  for  the  diminution  in  value.^^ 
Furthermore,  if  the  plaintiff  has  made  reasonable  expen- 
ditures for  the  purpose  of  avoiding  the  consequences  of 
the  defendant's  wrong,  he  can  recover  for  such  expendi- 
tures ;  ^®  and  he  is  entitled  to  compensation  for  the  use  of 
the  property  during  the  time  reasonably  necessary  for 
the  repairing  of  the  injury.^^  But  he  is  not  usually  enti- 
tled to  have  the  value  of  the  use  measured  by  the  amount 
of  prospective  profits  which  might  have  been  obtained 
from  a  continued  use  of  the  chattel.^®  The  rule  of  cer- 
tainty often  stands  in  the  way  of  the  assessment  of  dam- 
ages for  the  loss  of  such  prospective  profits ;  and,  besides, 
there  seems  to  be  no  good  reason  why  the  payment  of  a 
mere  rental  value  is  not  a  sufficient  compensation  for  the 
loss  of  the  use  of  the  chattel,  in  most  instances  in  which 
mere  interest  on  the  value  of  the  chattel  is  not  sufficient.^^ 

In  replevin,22  the  plaintiff,  if  he  establishes  his  right  to 
the  chattel  in  question  in  the  suit,  has  a  right  to  keep  the 
thing  already  in  his  possession  by  virtue  of  the  writ  of 

chaser    who    would    give    the    rea-  8a.  753;  Mitchell  v.  Burch,  (1871) 

sonably  possible  highest  price,  and  36  Ind.  529;  Gillett  v.  Western  R. 

named  an  alternative  sum.   In  a  case  Corporation,       (1864)       8       Allen 

like    this    market    value    oscillates  (Mass.)   560. 

within  limits,  because,  in  the  ab-  19 — Donahoo  v.  Scott,  (Tex.  Civ. 

sence  of  a  balance  wheel  like  the  App.  1895)   30  S.  W.  385;   Wright 

stock   exchange,  it   cannot   be   as-  v.    Mulvaney,    (1890)    78   Wis.    89, 

sumed  with  regard  to  a  single  ob-  46  N.  W.  1045,  9  L.  E.  A.  807,  23 

ject    and    a    single    sale    that   the  Am.  St.  Rep.  393. 

element  orf  accident  is  eliminated,  20 — Wright  v.  Mulvaney,  supra, 

and  that  the  most  favorable  pur-  a  case  of  injury  to  a  fishing-net. 

chaser    will    be     encountered." —  21 — See  Allen  v.  Fox,  (1873)  51 

Holmes,  C.  J.,  in  Bradley  v.  Hooker,  N.  Y.  562,  10  Am.  Rep.  641. 

(1900)    175   Mass.    142,   55   N.   E.  22— The   old   actiorn    of   detinue, 

848.  for  the  wrongful  detention  of  chat- 

17 — Gillett    V,    Western    R.    Cor-  tels,  need  not  be  considered  here, 

poration,    (1864)    8    Allen    (Mass.)  as   it    is    obsolete,    and    besides    is 

560.  of   little    historical    importance    in 

18 — ^W.  K.  Syson  Timber  Co.  v.  the    development    of    the    law    of 

Dickens,    (1906)    146  Ala.   471,  40  damages. 


TORTIOUS  DAMAGE  TO  PERSONALTY  337 

replevin,  and  to  recover  damages  for  its  wrongful  deten- 
tion; and  likewise  the  defendant,  if  the  plaintiff  fail  to 
establish  his  title,  can  get  the  chattel  back,  together  with 
damages  for  the  plaintiff's  wrongful  detention  of  the 
property  under  the  replevin  writ  during  the  suit.'^  In 
any  proceeding  for  damages  for  detention  of  personalty, 
compensation  for  the  detention  is  measured  by  the  value 
of  the  use  of  the  chattel.  If  the  thing  taken  consists  of 
mere  merchandise,  grain,  or  anything  useful  only  for 
sale  or  consumption,  the  value  of  the  use  is  the  interest 
on  the  value  of  the  chattel,  plus  depreciation  in  value ;  for 
the  owner  is  ordinarily  reimbursed  fully  by  such  compen- 
sation, since  he  could  simply  go  into  the  market  and  re- 
place the  thing  taken  and  thus  make  good  his  loss.^^  But 
sometimes  this  would  not  necessarily  be  adequate  com- 
pensation, and  this  is  held  to  be  the  case  where  the  article 
is  one  that  has  a  value  principally  for  use, — such  property 
as  horses,  machinery,  and  vehicles.^^  If  defendant  made 
no  use  of  the  property,  the  amount  of  depreciation  that 
would  have  been  caused  by  such  use  must  be  deducted 
from  the  rental  value,  as  the  defendant,  if  he  had  rented 

23 — Allen  v.  Fox,   (1873)    51  N.  during    the    same    time;    and,   see- 

Y.   562,    10  Am.    Rep.   641;   Fisher  ond,   for   any   depreciation   in   the 

V.  WhooUery,    (1855)    25  Pa.   197;  value  of  the  gaods  during  the  same 

Duroth     Mfg.     Co.     v.     Campbell,  time;  and,  third,  for  any  expenses 

(1914)  243  Pa.  24,  89  Atl.  798.  the  plaintiff  was  put  to  in  obtain- 

24 — Where  one  wrongfully  seizes  ing  a  return  of  the  goods."     This 

the    stock    of    goods    in    another's  latter  item  includes  costs  paid  on 

store,    without    malice,    but    rede-  illegal     judgments,     and     sheriff's 

livers  the  goods  to  the  owTier  be-  fees  charged  on  illegal  executions, 

fore    action    is    commenced,    com-  Anderson  v.  Sloane,  (1888)  72  Wis. 

pensation    for    the    detention    in-  566,  40  N.  W.  214. 
eludes   the  following:    "First,  the  See    also    McDonald    v.    Scaife, 

plaintiff  should  recover  interest  on  (1849)    11    Pa.    381,   51    Am.   Dec. 

the  value  of  the  goods  seized,  from  556. 

the  time  of  the  seizure  until  the  25 — Allen  v.  Fox,  (1873)  51  N. 
same  were  delivered  to  the  plain-  Y.  562,  10  Am.  Eep.  641;  Arm- 
tiff,  or  to  his  assignee;  or,  at  the  strong  v.  Philadelphia,  (1915)  249 
option  of  the  plaintiff,  in  lieu  of  Pa.  39,  94  Atl.  455,  Ann.  Cas.  1917 
such  interest,  he  may  recover  as  B  1082. 
damages  the  value  of  his  business 
Bauer  Dam.— 22 


338  LAW  OF  DAMAGES 

the  property  of  the  plaintiff,  would  not  have  had  to  pay 
for  depreciation  in  addition  to  the  rental  value,  rental 
including  ordinary  wear  and  tear.^® 

The  amount  of  damages  for  detention  of  personalty 
should  bear  some  reasonable  proportion  to  the  value  of 
the  goods.^^ 

When  a  conversion  is  mentioned,  one  naturally  thinks 
of  a  loss  of  the  entire  value  of  the  chattel.  A  conversion 
is,  in  theory,  a  complete  deprivation.  But  the  general 
rule  that  the  owner  may  recover  the  entire  value  of  the 
chattel  at  the  time  of  the  conversion,  is  to  be  applied  unre- 
servedly only  in  cases  wherein  the  actual  loss  is  not  les- 
sened by  such  surrounding  circumstances  as  the  law  takes 
into  account  in  modification  of  the  operation  of  the  gen- 
eral rule.  If  the  conversion  has  resulted  in  a  mere  dimi- 
nution in  value  of  the  chattel,  and  the  owner  has  accepted 
it  when  returned  by  the  wrongdoer,  the  return  and  accept- 
ance must  be  considered  in  mitigation  of  damages,  of 
which  the  usual  effect  would  be  to  place  the  amount  of 
the  verdict  at  about  the  amount  of  the  diminution  in 
value.^^  Likewise,  if  the  conversion  has  resulted  in  a 
mere  deprivation  of  the  use  of  the  chattel  for  a  time,  and 
the  owner  has  accepted  it  back  at  the  hands  of  the  wrong- 
doer, these  circumstances  must  be  considered  in  mitiga- 
tion of  damages,  which  will  ordinarily  result  in  compen- 
sating the  owner  merely  for  the  deprivation  of  the  use.^* 
Perhaps  a  better,  as  well  as  a  bolder,  way  of  stating  these 
principles,  than  the  usual  statement,  as  above,  in  regard 
to  mitigation,  is  the  following:  ''If  after  conversion  the 
property  be  restored  before  suit,  damages  for  the  deten- 

26— -White   v.   Sheffield,   etc.,  St.  v.  Hughes,  (1893)   18  Neb.  579,  26 

R.   Co.,    (1889)    90   Ala.   253,  7   So.  N.  W.  351;  Armstrong  v.  Philadel- 

910;  Peerless  Machine  Co.  v.  Gates,  phia,    (1915)    249    Pa.    39,    94   Atl. 

(1895)     61    Minn.    124,    63    N.    W.  455,  Ann.  Cas.  1917  B  1082. 

260;     Armstrong    v.    Philadelphia,  28 — Lucas    v.    Trumbull,    (1860) 

supra.  15  Gray    (Mass.)    306. 

27— Brunnell  v.  Cook,  (1893)   13  29— King  v.  Franklin,  (1902)  132 

Mx)nt.  497,  34  Pac.  1015;  Rormberg  Ala.  55©,  31  So,  467. 


TORTIOUS  DAMAGE  TO  PERSONALTY  339 

tion  only  can  be  recovered."^®  Of  course,  a  wrongdoer 
cannot  force  the  owner  to  take  back  the  chattel  in  mitiga- 
tion of  damages.  When  a  conversion  is  once  complete, 
the  owner  may  elect,  if  he  choose,  to  permit  the  wrong- 
doer to  keep  the  property.  The  doctrine  of  mitigation  of 
damages,  in  these  cases,  is  founded  upon  the  actual  or 
implied  assent  of  the  owner  to  the  return  of  the  goods.^* 
In  some  instances,  the  property,  while  in  the  hands  of  the 
wrongdoer,  is  seized  by  a  third  person,  under  an  execu- 
tion against  the  ouTier ;  and,  since  the  owner  has,  in  such 
a  case,  the  benefit  of  the  value  of  the  property,  the  wrong- 
doer has  the  clear  right  to  set  up  such  seizure  in  mitiga- 
tion of  damages.^^  On  the  question  whether  a  subsequent 
rightful  execution  in  behalf  of  the  wrongdoer  will  miti- 
gate damages,  there  is  a  conflict  of  authority.^^ 

189.  *'Exemplaj*y  Damages  also  may  be  allowed  in 
cases  where  there  have  been  particular  circumstances  of 
fraud,  oppression,  or  wrong  in  the  taking  or  detention  of 
the  property.  *  *  ^* 

30 — This  statement  of  the  law  is  32— Sherry    v.    Schuyler,    (1842) 

quoted  with  approval  in  Lazarus  v.  2  Hill  (N.  Y.)   204;  Ball  v.  Liney, 

Ely,    (1878)    45    Conn.    504,    as    is  (1871)    48   N.    Y.    6,    8    Am.    Rep. 

also  the   rule  that   "if  the  prop-  511. 

erty  for  which  the  action  is  33 — Lazarus  v.  Ely,  (1878)  45 
brought  has  been  returned  to  and  Conn.  504,  holds  that  a  subsequent 
received  by  the  plaintiff,  it  shall  rightful  execution  levied  on  the 
go  in  mitigation  of  damages,'*  the  property  in  behalf  of  the  wrong- 
court  apparently  taking  the  view  doer,  may  be  considered  in  mitiga- 
that  the  two  statements  are,  at  tion.  Contra:  Ball  v.  Liney,  (1871) 
bottom,  really  grounded  in  the  same  48  N.  Y.  6,  8  Am.  Rep.  511. 
principle,  or  that  they  give  the  34 — McDonald  v.  Scaife,  (1849) 
same  net  results.  The  Lazarus  ease  11  Pa.  381,  51  Am.  Dec.  566.  See 
quotes  the  above  rule  as  to  miti-  also:  Cable  v.  Dakin,  (1838)  20 
gation  from  Curtis  v.  Ward,  (1850)  Wend.  (N.  Y.)  172;  Armstrong  v. 
20  Conn.  204,  which  cites  Pierce  Philadelphia,  (1915)  249  Pa.  39, 
v.  Benjamin,  (1833)  14  Pick.  94  Atl.  455,  Ann.  Cas.  1917  B  1082j 
(Mass.)   356,  25  Am.  Dec.  396.  Wiley  v.  McGrath,  (1900)  194  Pa. 

31— Carpenter  v.  Dresser,  (1881)  498,  45  AtL  331,  75  Am.  St.  Bep. 

72  Me.  377,  39  Am.  Bep,  337.  709. 


340  LAW  OF  DAMAGES 

CASE  ILLUSTRATIONS 

1.  Plaintiff's  automobile  was  negligently  struck  and  damaged 
by  defendant's  street  ear.  The  measure  of  damages  is  the  dif- 
ference in  the  value  of  the  automobile  just  before  and  just  after 
the  injury .35 

2.  Defendant's  street  car,  through  negligence,  struck  and 
totally  destroyed  plaintiff's  wagon.  Plaintiff  may  recover  its 
total  value.36 

3.  Defendant  struck  plaintiff's  team  of  young  horses,  causing 
them  to  run  away.  A  load  of  wood  was  thereby  thrown  off  plain- 
tiff's  sleigh,  and  his  harness  and  sleigh  were  damaged.  Plain- 
tiff can  recover  for  delay  in  getting  to  the  place  of  destination 
and  market,  labor  and  trouble  of  reloading  the  wood  in  the 
snow,  the  time  lost  and  expense  incurred  in  making  the  repairs, 
and  the  injury  to  the  team  in  causing  it  to  run  away,  although 
the  horses  received  no  bodily  injury,  but  were  lessened  in  value 
only  by  acquiring  the  vicious  habit  of  running  away.^^ 

4.  A  killed  some  of  B's  cows  and  wounded  others.  As  to  the 
wounded  cows, — B  may  recover  for  the  loss  of  milk  while  these 
cows  were  recovering.^s 

5.  Defendant  trespassed  upon  a  boom  of  plaintiff,  and  cut  and 
broke  the  fastenings  of  logs  therein,  causing  the  logs  to  escape. 
Plaintiff  may  recover  for  the  property  thereby  lost  or  destroyed, 
and  for  the  cost  of  watehing  the  logs  and  preserving  them.  "It 
was  plaintiff's  duty  to  use  all  reasonable  means  to  reduce  the 
damage  as  much  as  possible,  and  the  reasonable  cost  in  so  doing, 
constitutes  a  part  of  the  reasonable  recoverable  damage.  "^9 

6.  Defendant  destroys  plaintiff's  property,  which  has  no 
market  value  and  cannot  be  replaced.  The  measure  of  damages 
is  the  loss  to  plaintiff.*^ 

7.  Defendant  wrongfully  destroyed  plaintiff's  glass  picture, 

35 — ^Birmingham  Ey.,  etc.,  Co.  v.  ever,  the  value  of  the  use  of  a  cow 

Sprague,    (1916)    196   Ala.   148,   72  is  nort  always  held  to  be  the  value 

So.  96.  of  her  milk. 

36 — EoflFmann  v.  Third  Ave.  Ey.  3'9— W.  K.  Syson  Timber  Co.  v. 

Co.,  (1916)   157  N.  T.  Supp.  877.  Dickens,    (1906)    146   Ala.   471,  40 

37— Oleson  v.  Brovra,   (1877)   41  So.  753. 

Wis.  413.  40— Bateman    v.    Eyder,    (1901) 

38— Donahoo  v.  Scott,  (Tex.  Civ,  106  Tenn.  712,  64  S.  W.  48,  82  Am. 

App.   1895)    30   S.  W.   385.     How-  St.  Eep.  910. 


TORTIOUS  DAMAGE  TO  PERSONALTY  341 

painted  by  plaintiff.  Held,  that  the  measure  of  damages  is  the 
pecuniary  loss  suffered  by  reason  of  the  breakage,  which,  in  case 
of  total  destruction,  is  the  market  value  of  the  article ;  and  that 
plaintiff  cannot  recover  the  value  of  the  broken  picture  to  her 
individually  as  a  design.*  ^ 

8.  Defendant  converted  and  sold,  at  26  cents  per  share,  stock 
of  plaintiff  having  no  market  value.  Stock  of  the  same  company 
had,  under  exceptional  circumstances,  sold  as  high  as  40  cents 
per  share.  Held  that,  in  assessing  damages,  the  jury,  although 
not  governed  by  the  exceptionally  high  price  of  40  cents,  should 
consider  it.^^ 

41— Wade  v.  Herndl,  (1906)  127  42— Goodall  v.  Clarke,  (1910)  21 

Wis.  544,  107  N.  W.  4,  5  L.  R.  A.      Ont.  L.  R.  614,  18  Ann.  Cas.  605. 
(N.  S.)  855,  7  Ann.  Cas.  591. 


CHAPTER  XLII 

Nuisance 

190.  Special  Damage  Essential  to  Maintenance  of  Ac- 
tion.— A  public  nuisance  is  one  that  affects  the  public 
generally.  A  private  nuisance  is  one  that  particularly 
affects  an  individual.  The  same  nuisance  may  be  both 
public  and  private,  for  it  may  both  affect  generally  the 
public  in  the  locality  in  which  it  exists  and  affect  particu- 
larly one  person.  If  a  nuisance  is  entirely  a  public  one, 
a  private  individual  cannot  maintain  an  action  founded 
upon  it.  In  other  words,  he  must  plead  and  prove  that 
the  nuisance  has  resulted  in  special  damage  to  him;  or, 
to  express  it  still  differently,  that  toward  him  the  nui- 
sance assumes  the  aspect  of  a  private  nuisance.^  The 
mere  fact  that  the  plaintiff  is  a  member  of  the  public  and 
is  injured  by  the  maintenance  of  the  nuisance  just  as  all 
other  members  of  the  public  are  injured,  does  not  entitle 
him  to  maintain  an  action. 

191.  Elements  of  Compensation. — ^Where  a  nuisance  is 
permanent,  depreciation  in  the  value  of  the  plaintiff's 
property  by  reason  thereof  is  an  element  of  damage.^ 

1 — ^Wesson     v.     Washburn     Iron  may,    only   under    certain    circum- 

Cc,    (1866)    13    Allen    (Mass.)    95.  stances    or    in    certain    places,    be 

See  also  Ackerman  v.  True,  (1903)  nuisances,    as,    for    example,    pig- 

175  N.  Y.   353,   67   N.   E.   629.  sties    and    fertilizer    works.      See 

Nuisances   are   also  classified   as  Woods  v.  Rock  Hill  Fertilizer  Co., 

nuisances  per  se  and  nuisances  per  (1915)    102    S.   Car.   442,   86  S.   E. 

accidens.      The    former    are    those  817,  Ann.  Cas.  1917  D  1149. 

things  which,  in   all  places,  under  2 — Watts    v.    Norfolk,    etc.,    R. 

all    circumstances,    are    nuisances,  Co.,    (1894)    39  W.  Va.  196,  19  S. 

as,  for  instance,  houses  of  ill  fame;  E.  521. 
the  latter  are  those  things  which 

342 


NUISANCE  343 

Where  it  is  temporary,  the  plaintiff  may  recover  for  the 
diminution  in  rental  value  of  the  property  during  the 
continuance  of  the  wrong.^  It  sometimes  happens  that 
the  nuisance  has  caused  illness  or  other  personal  injury 
to  the  plaintiff.  Where  this  is  so,  this  a  proper  element 
of  damage.^  Where  a  nuisance  annoys  and  disturbs  one 
in  the  possession  of  his  property,  rendering  its  use  or 
occupation  physically  uncomfortable  to  him,  damages  are 
given  for  the  annoyance  and  discomfort.^ 

''The  cause  of  action,  in  case  of  an  ordinary  nuisance, 
is  not  so  much  the  act  of  the  defendant  as  the  injurious 
consequences  resulting  from  his  act,  and  hence  the  cause 
of  action  does  not  arise  until  such  consequences  occur; 
nor  can  the  damages  be  estimated  beyond  the  date  of 
bringing  the  first  suit.  *  *  *  it  has  been  held,  how- 
ever, that  where  permanent  structures  are  erected,  re- 
sulting in  injury  to  adjacent  realty,  all  damages  may  be 
recovered  in  a  single  suit.  *  *  *  But  there  is  much 
confusion  among  the  authorities  which  attempt  to  distin- 
guish between  cases  where  successive  actions  lie  and 
those  in  which  only  one  action  may  be  maintained.  This 
confusion  seems  to  arise  from  the  different  views  enter- 
tained in  regard  to  the  circumstances  under  which  the 
injury  suffered  by  the  plaintiff  from  the  act  of  the  de- 
fendant shall  be  regarded  as  a  permanent  injury. ' ' « 

3 — Pritchard  v.  Edison  niuminat-  effects  a  permanent  change  in  the 

ing  Co.,  (1904)   179  N.  Y.  364,  72  plaintiff's  land,  and  is  at  the  same 

N.  E.  243.  time  a  nuisance  or  trespass."    The 

4 — Stremph     v.     Loethen,     (Mo.  Schlitz   case   holds   the   reasonable 

App.  1918)  203  S.  W.  238.  view  to  be  that  it  is  unreasonable 

5 — Ackerman     v.     True,     (1903)  to  assume  that  a  nuisance  or  ille- 

175  N.  Y.  353,  67  N.  E.  629.  gal  act  will  continue  forever,  and 

6 — Schlitz  Brewing  Co.  v.  Comp-  holds  that   entire  damages   as  for 

ton,   (1892)    142  111.  511,  32  N.  E.  a  permanent  injury  should  be  re- 

693,  18  L.  R.  A.  390,  34  Am.  St.  fused,  and  that  only  such  damages 

Bep.  92,   quoting  as  follows   from  should  be  allorwed  for  the  contin- 

Sedg.  Dam.    (8th   ed.)    §94:   "The  nation  of  the  wrong  as  accrue  up 

chief  difficulty  in  this  subject  con-  to  the  date  of  the  bringing  of  the 

perns   acts   which    result    in   what  action. 


344  LAW  OF  DA^IAGES 

192.  Permanence  of  Nuisance. — If  a  nuisance  is  of  such 
a  character  that  it  may  be  abated,  a  suit  in  equity  is 
ordinarily  brought,  in  which  an  injunction  is  procured, 
prohibiting  the  defendant  from  longer  maintaining  the 
nuisance,  and  prospective  damages  are  not  assessed,  as 
no  future  continuance  of  the  wrong  is  contemplated.  So 
it  is  also  as  to  damages  for  a  nuisance  which  the  defend- 
ant is  willing  and  ready  to  abate.  In  fact,  ac<?ording  to 
the  better  view,  damages  cannot  properly  be  assessed  in 
an  ordinary  nuisance  case,  for  losses  expected  to  accrue 
from  a  future  continuance  of  the  nuisance,  as  it  is  not 
presumed  that  it  will  continue  permanently.'^ 

Where  a  nuisance  is  such  that  it  must  be  permanent, 
however,  both  past  and  prospective  damages  are  assessed. 
Such  a  case  is  that  of  a  necessary  public  business  giving 
rise  necessarily  to  a  nuisance,  which  must,  in  the  nature 
of  the  case,  be  maintained  permanently,  authorized  by 
the  government  and  essential  to  the  public  welfare.® 

Where  defendant  maintained  a  water  tank  and  pump- 
ing-station,  so  located  as  to  cause  injury  to  plaintiff's 
property,  and  it  was  likely  that  the  nuisance  would  remain 
permanently,  it  was  held  proper  to  assess  damages  for 
the  permanent  injury  to  plaintiff's  property.® 

Sometimes  it  happens  that  a  nuisance  which  is  tempo- 
rary, in  the  sense  that  it  can  and  will  be  abated,  has 
already,  at  the  time  of  the  trial,  given  rise  to  damage  of 
such  a  nature  that  it  cannot  be  other  than  permanent.  In 
such  cases,  damages  for  such  permanent  injury  must  be 
assessed,  although  the  nuisance  is  abated.^® 

The  fact  that,  though  the  injury  is  permanent,  the  de- 

7— Benjamin    v.    Storr,    L.    R.    9  kert,   (1906)    122  Ky.   720,  29  Ky. 

C.   P.    400.  Law   273,   92   S.    W.    957,   13    Ann. 

8 — Schlitz  Brewing  Co.  v.  Camp-  Cas.  105. 

ton,   (1892)    142  111.  511,  32  N.  E.  10— Niagara    Opl    Oo.    v.    Ogle, 

693,  18  L.  R.  A.  390,  34  Am.  St.  (1912)   177  Ind.  292,  98  N.  E.  60, 

Rep.  92.  Ann.    Cas.   1914  D   67. 

9 — Central  Consumers  Co.  v.  Pin- 


NUISANCE  345 

fendant  could  abate  it  if  he  desired,  does  not  prevent  the 
plaintiff  from  getting  damages  as  for  a  permanent  loss.^^ 

193.  No  Duty  in  Plaintiff  to  Mitigate  Damage  to  His 
Property. — Unlike  the  usual  rule  in  torts  and  contracts 
to  the  effect  that  a  plaintiff  must  do  what  is  reasonable 
in  order  to  mitigate  the  damage  done  by  defendant's 
wrong,  there  is  a  rule  that  one  suffering  from  a  nuisance 
is  not  obliged  to  prevent  ill  consequences  to  his  prop- 
erty.^2  This  rule  is  clearly  correct  on  principle.  In  the 
case  of  the  ordinary  tort  or  breach  of  contract,  the  de- 
fendant does  his  one  wrongful  act  and  ceases,  and  he 
usually  then  loses  all  control  of  the  situation ;  and  so  the 
burden  of  preventing  unnecessarily  large  damage  is 
shifted  to  the  plaintiff.  In  a  nuisance  case,  the  defend- 
ant, by  maintaining  his  nuisance,  continues  to  do  wrong, 
and  it  continues  within  his  power  to  prevent  the  accrual 
of  further  damage  to  plaintiff  by  simply  discontinuing 
his  nuisance.  It  is  more  within  his  power  than  within 
that  of  the  plaintiff  to  put  an  end  to  the  damage ;  in  fact, 
the  termination  of  the  nuisance  is  usually  in  the  exclusive 
power  of  the  defendant.  Another  ground  on  which  the 
same  result  may  be  reached  in  some  cases  is  that  plain- 
tiff, having  no  control  over  the  place  where  the  nuisance 
is  being  maintained,  is  under  no  duty  to  minimize  damage 
by  abating  the  nuisance.^^ 

11 — Niagara    Oil    Co.    v.    Ogle,  an  action  at  law  or  in  equity.     A 

supra.  party   is   not   bound   to    expend    a 

12 — Niagara  Oil  Co.  v.  Ogle,  dollar,  or  to  do  any  act  to  secure 
(1912)  177  Ind.  292,  98  N.  E.  60,  for  himself  the  exercise  or  enjoy- 
Ann.  Cas.  1914  D  67,  quoting  Wood,  ment  of  a  legal  right  of  which  he  is 
Nuisances  (3d  ed.)  §  435,  as  fol-  deprived  by  reason  of  the  wrong- 
lows:  "It  is  the  duty  of  every  ful  acts  orf  another." 
person  or  public  body  to  prevent  13 — Cumberland  Grocery  Co.  v. 
a  nuisance,  and  the  fact  that  the  Baugh's  Administrator,  (1913)  151 
person  injured  could,  but  docs  not,  Ky.  641,  152  S.  W.  565,  Ann.  Cas. 
prevent  damages  to  his  property  1015  A  130. 
therefrom  is  no   defense   either  to 


346  LAW  OF  DAMAGES 

CASE  ILLUSTRATIONS 

1.  Defendant  maintained  a  fertilizer  mixing  plant  near  plain- 
tiff's  house,  causing  obnoxious  odors,  flying  dust  and  grit  to 
enter  plaintiff's  home.  Held,  that  this  is  a  private  nuisance  and 
a  nuisance  per  accidens.  Held  also,  that  an  allegation  that 
plaintiff's  mother  and  sister  live  with  her  and  suffer  from  the 
nuisance,  though  not  strictly  necessary  to  the  statement  of  plain- 
tiff's cause  of  action,  was  not  irrelevant  thereto,  for  it  tends 
to  show  the  nature  and  extent  of  plaintiff's  damages.^ ^ 

2.  A  maintains  near  B's  vacant  lots  a  slaughter-house,  which 
diminishes  the  value  of  the  lots.  B  cannot  procure  an  injunc- 
tion, as  he  has  an  adequate  remedy  in  an  action  at  law,  in  which 
the  measure  of  damages  would  be  the  diminution  in  the  value 
of  his  lots.  15 

3.  Defendant  permitted  filth  to  drain  from  his  premises  into 
those  of  plaintiff.  Held,  that  plaintiff  can  recover  for  damage  to 
walls  and  cellars,  and  also  for  rents  lost.^® 

14 — Woods   V.    Rock   Hill   Ferti-  of  a  slaughter-house  diminishes  the 

lizer  Co.,   (1915)    102   S.   Car.  442,  permaaient    value    of    neighboring 

86    S.    E.    817,    Ann.    Cas.    1917  D  lots.      The    permitting   of    filth    to 

1149.  drain  into  plaintiff's  premises  does 

15 — Dana    v.    Valentine,    (1842)  not  give  rise  to  a  permanent  con- 

5   Mete.    (Mass.)    8.  dition,    but    only    to    a    temporary 

16 — Jutte  V.  Hughes,    (1876)    67  condition,  which  must   be  abated; 

N.    Y.    267.      Contrast    the    facts  and   so   damages  include  only  loss 

here  with  those  in  Dana  v.  Valen-  of  rents,  instead  of  diminution  in 

tine.     The  permanent  maintenance  value  of  the  fee. 


CHAPTER  XLIII 
Batteey  and  Other  Personal.  Injuries 

194.  Elements  of  Compensation. — Where  the  defend- 
ant has  tortiously  inflicted  a  personal  injury  upon  the 
plaintiff,  a  jury  should  take  into  account  the  following 
heads  of  damage :  ' '  the  bodily  injury  sustained ;  the  pain 
undergone;  the  effect  on  the  health  of  the  sufferer,  ac- 
cording to  its  degree  and  its  probable  duration  as  likely 
to  be  temporary  or  permanent ;  the  expenses  incidental  to 
attempts  to  effect  a  cure,  or  to  lessen  the  amount  of 
injury ;  the  pecuniary  loss  sustained  through  inability  to 
attend  to  a  profession  or  business  as  to  which,  again,  the 
injury  may  be  of  a  temporary  character,  or  may  be  such 
as  to  incapacitate  the  party  for  the  remainder  of  his 
life."^  As  will  be  seen  later,  mental  suffering  also  is 
often  a  proper  element  of  damage.  In  any  case,  any  one 
or  several  of  these  elements  may  be  missing, 

A^Tiere  plaintiff  has  suffered  permanent  disfigurement 
as  a  result  of  the  personal  injury,  his  humiliation  or  mor- 
tification at  the  disfigurement  is,  according  to  the  weight 
of  authority,  a  recoverable  element  of  damage.^  Full  re- 
dress would  not  be  afforded  if  this  element  were  omitted.' 

1 — Johnston    v.    Great    Western  Rep.  320;   Coombs  v.  King,   (1910) 

By.  Co.,  L.  R.  2  K.  B.  1904,  250.  107  Me.  376,  78  Atl.  648,  Ann.  Cas. 

2— The      Oriflamme,      (1875)      3  1912  C     1121;     Power    v.     Harlow, 

Sawy.  397,  2  Cent.  L.  J.  473,  2  Int.  (1885)  57  Mich.  107,  23  N.  W.  606; 

Rev.    Rec.    237,    18   Fed.    Cas.   No.  Patterson    v.    Blatti,     (1916)     133 

10,572;  Merrill  v.  Los  Angeles  Gas,  Minn.  23,  157  N.  W.  717,  Ann.  Caa. 

etc.,    Co.,    (1910)     158    Calif.    499,  1918    D    63;    Gray   v.   Washington 

111  Pac.  534,  31  L.  R.  A.  (N.  S.)  Water  Power  Co.,  (1903)  30  Wash. 

559, 139  Am.  St.  Rep.  134;  Western,  665,  71  Pac.   206.     See  note,  Ann. 

etc.,   R.    Co.   V.   Young,    (1888)    81  Cas.  1918  D  65. 

Ga.   397,  7  S.  E.  912,  12  Am.  St.  3— Ferguson,    etc.,    Co.    v.    Good, 

347 


348  LAW  OF  DAMAGES 

This  would  seem  a  rational  and  incontrovertible  prop- 
osition, but  a  considerable  minority  of  cases  hold  other- 
wise."* The  ground  upon  which  these  minority  holdings 
are  sometimes  based  is  that  mental  suffering  of  this  char- 
acter is  too  remote  and  too  speculative,  particularly 
where  there  is  no  malice.^  It  certainly  is  difficult  to 
understand  how  the  non-existence  of  malice  can  make  a 
result  remote  or  speculative.  Probably  these  cases  are 
really  grounded  in  a  desire  of  the  courts  to  keep  the 
amounts  of  verdicts  in  such  cases  within  due  bounds  and 
especially  to  protect  defendants  from  the  establishing  of 
* 'fanciful  or  fraudulent  claims  by  testimony  which  it  is 
impossible  to  contradict  or  impeach."^ 

In  order  to  justify  an  award  of  damages  as  for  a  per- 
manent injury,  there  must  be  reasonable  certainty  that 
the  injury  is  permanent,  and  not  a  mere  chance  or  proba- 
bility that  such  is  the  case.'^ 

One  of  the  most  obvious  rights  of  the  plaintiff  is  to 
recover  for  all  expenditures  made  in  a  reasonable  effort 
to  effect  a  cure  of  the  condition  brought  about  by  the 
wrongful  conduct  of  the  defendant.  Eecovery  may  be 
had  for  all  such  expenditures,  no  matter  at  what  time 
made,  up  to  the  time  of  the  trial.  Plaintiff  may  intro- 
duce in  evidence  the  fact  that  he  has  incurred  doctor  bills 
and  drug  bills  in  attempting  to  be  cured  since  the  date  of 

(1914)    112   Ark.    260,    165   S.    W.  204  Pa.  St.  551,  54  Atl.  341,  93  Am. 

628.  St.   Eep.   800. 

4 — Southern   Pacific   Co.   v.  Het-  5 — Chicago,   B.    &   Q.    E.    Co.    v. 

zer,   (1905)   135  Fed.  272,  68  C.  C.  Hines,   (1891)  45  111.  App.  299. 

A.    26,    1    L.    E.    A.    (N.    S.)    288;  6— See  Linn  v.  Duquesne,  (1903) 

Diamond  Eubber  Co.  v.  Harryman,  204   Pa.    St.    551,    54   Atl.   341,   93 

(1907)    41   Colo.   415,  92  Pae.  922,  Am.  St.  Eep.  800. 

15  L.  E.  A.  (N.  S.)  775;  Indianap-  7 — L'Herault      v.      Minneapolis, 

olis,  etc.,  E.  Co.  v.  Stables,  (1872)  (1897)  69  Minn.  261,  72  N.  W.  73; 

62    111.    313;    Chicago    City   E.    Co.  Carsom    v.    Turrish,    (Minn.    1918) 

V.   Anderson,    (1899)    182  111.    298,  168    N.   W.   349,   L.   E.    A.    1^18  F 

55  N.   E.   366;    Salina   v.   Trosper,  154;    Strohm   v.   New  York,   Lake 

(1882)    27   Kan.    544;    Johnson    v.  Erie,  etc.,  B.  Co.,  (1884)  96  N.  T, 

Wells,    (1870)    6  Nev.   224,  3  Am.  305. 
Eep.  245;  Linn  v.  Duquesne,  (1903) 


PERSONAL  INJURIES  349 

the  commencement  of  the  action.^  Likewise,  plaintiff 
may  introduce  proof  as  to  similar  expenditures  likely  to 
be  necessary  in  the  future.^ 

Loss  of  wages  and  loss  of  earning  power,  elsewhere 
more  fully  treated,^*^  constitute  important  elements  of 
damage  in  many  personal  injury  cases.  What  a  plaintiff 
has  been  earning  before  the  accident  is  often  a  safe  basis 
for  computing  the  amount  of  wages  lost  and  the  value  of 
his  earning  power ;  ^^  but,  if  the  nature  of  his  occupation 
is  such  as  to  render  the  value  of  his  earning  power  uncer- 
tain and  speculative,  no  good  purpose  can  be  served  by 
admitting  testimony  as  to  his  previous  earnings.^  ^ 

195.  Injuries  to  a  Married  Woman. — As  results  of  per- 
sonal injury  to  a  married  woman,  she  herself  may  suffer 
certain  losses,  which  figure  as  elements  of  damage  in  an 
action  by  her ;  and  her  husband  may  have  his  action  for 
certain  losses  suffered  by  him  as  consequences  of  the 
injury  to  her. 

Of  course  the  wife,  like  any  person  suing  for  his  own 
personal  injury,  can  recover  for  physical  pain,  mental 
suffering,  and  impairment  or  disfigurement  of  her  person. 

The  right  of  a  married  woman  to  recover  on  her  own 
account  for  loss  of  her  earnings  is  a  matter  depending 
largely  upon  the  statutes.  Of  course,  in  the  absence  of 
a  statute  giving  a  married  woman  the  right  to  earnings 
accruing  from  her  own  services,  the  common  law  pre- 
vails, the  property  right  in  her  services  belongs  solely  to 
her  husband,  and,  on  this  theory,  her  husband,  and  not 
she,  is  financially  damaged  by  her  inability  to  work. 
Under  a  statute  giving  a  married  woman  the  right  to 

8— Sturm    v.    Consolidated    Coal  10 — Chapter  XVI. 

Co.,    (1910)    248  111.   20,   93   N.  E.  11— Ehrgott  v.  Mayor,  (1884)  96 

345,  21  Ann.  Caa.  99;  Chicago  City  N.  Y.  264,  48  Am.  Kep.  622. 

R.  Co.  V.  Henry,  (1905)  218  111.  92,  12— Walsh  v.  New  York,  etc,  R. 

75  N.  E.  758.  Co.,  (1912)  204  N.  Y.  58,  97  N.  E. 

9— Chicago  City  R.  Co.  v.  Henry,  408,  37  L.  R.  A.  (N.  S.)  1137. 
supra. 


350  LAW  OF  DA]\IAGES 

receive  her  own  earnings,  it  is  held,  very  properly  and 
logically,  that  a  married  woman  has  the  right  to  sue  for 
loss  of  her  earnings  in  work  other  than  the  mere  per- 
formance of  her  household  duties  or  the  performance  of 
other  work  gratuitously  for  her  husband.  When  the 
statute  gives  her  this  legal  right  to  receive  her  earnings, 
it  is  clear  that  a  deprivation  of  her  earnings  becomes, 
both  actually  and  theoretically,  a  loss  to  her,  and  so 
should  be  held  remediable  at  her  suit.^^  For  example, 
where  a  married  woman  conducts  a  boarding-house,  a 
separate  business  of  her  own,  from  which  she  has  an 
income,  and  her  ability  to  conduct  it  is  diminished  and 
her  business  made  less  profitable  by  reason  of  a  personal 
injury,  she  can  recover  damages,  if  she  specially  plead 
and  prove  such  damage.^^ 

Where  a  wife  sues  in  her  own  right  for  personal  in- 
juries to  herself,  even  if  the  husband  be  joined  as  a  mere 
nominal  plaintiff,  she  cannot  recover  for  any  loss  of  her 
labor  that  belongs  to  her  husband ;  ^^  but  a  married 
woman  has  such  an  interest  in  her  own  capacity  to  labor 
that  she  can,  in  her  own  right,  recover  for  a  diminution 
or  loss  of  such  capacity.^  ^ 

Because  a  wife  cannot  recover  for  the  loss  of  any  of 
her  labor  legally  belonging  to  her  husband,  it  follows 
that,  even  where  a  statute  enables  a  wife  to  recover  for 
her  earnings  in  a  separate  business  or  occupation,  she 
cannot  recover  for  loss  of  her  regular  services  in  her 
home;  for  these  services  still  belong  to  her  husband. ^'^ 

In  order  to  get  substantial  damages  for  loss  of  her 
earnings,  a  married  woman  must  of  course  prove  the 

13— West  Chicago  St.  R.  Co.  v.  15— Earl    v.    Tupper,    (1873)    45 

Carr,  (1897)  170  111.  478,  48  N.  E.  Vt.  275. 

992;  Boyle  v,  Saginaw,  (1900)   124  16— Powell   v.   Augusta  &  S.   R. 

Mich.  348,  82  N.  W.   1057;   Smith  Co.,    (1887)    77    Ga.    192,   3    S.    E. 

V.  Chicago  &  A.  R.  Co.,  (1893)  119  757;    Jordan   v.   Middlesex,   (1885) 

Ma.  246,  23  S.  W.  784.  138  Mass.  425. 

14 — Moran    v.    New    York    City  17 — Tuttle  v.  Chicago,  R.  I.,  etc., 

Ry.  Co.,  (1905)  94  N.  Y.  Supp.  302.  R.  Co.,  (1876)   42  la.  518. 


PERSONAL  INJURIES  351 

value  of  such  services,  with  reasonable  certainty,  as  in 
any  other  case.^^ 

The  husband  has,  as  a  general  rule,  the  right  to  recover, 
as  damages  for  the  personal  injury  of  his  wife,  compen- 
sation for  loss  of  her  services,^^  for  the  cost  of  her  med- 
ical treatment,^"  and  for  loss  of  consortium.^^ 

Statutes  enlarging  the  wife's  separate  civil  rights  do 
not  take  away  the  husband's  right  to  the  wife's  reason- 
able household  services  and  consortium,  and  so  do  not 
deprive  him  of  a  right  of  action  for  their  loss.^^ 

Usually  the  only  financially  valuable  services  of  a  wife 
that  are  lost  by  her  husband  as  a  result  of  her  personal 
injury  are  domestic  services,  for  the  loss  of  which  the 
husband  may  unquestionably  recover;  but  the  fact  that 
some  of  her  services  are  rendered  to  her  husband  outside 
the  household,  does  not  prevent  him  from  recovering  for 
their  loss,  if  he  properly  plead  and  prove  the  loss  of  such 
services.  For  instance,  where  the  wife  has  been  assisting 
her  husband  in  his  business  up  to  the  time  of  the  injury, 
\\ithout  any  contract  for  pay  for  such  services,  depriva- 
tion of  her  services  in  his  business  is  an  element  of  dam- 
is— Denver  &  E.  G.  R.  Co.  V.  1063,  38  L.  E.  A.  631,  60  Am,  St. 
Young,  (1'902)  30  Colo.  349,  70  Pac.  Rep.  397;  Berger  v.  Jacobs,  (1870) 
688.  21    Mich.    215;    Hyatt    v.    Adams, 

19— Washington   &  G.   E.   Co.   v.       (1867)   16  Mich.  180;   Holleman  v. 
Hickey,    (1898)    12   App.   Cas.    (D.      Harward,   (1896)   119  N.  Car.  150, 
C.)     269;    Metropolitan    Street    E.       25  S.  E.  972,  34  L.  E.  A.  803,  56 
Co.  V.  Johnson,  (1893)  91  Ga.  466,      Am.  St.  Rep.  672. 
18  S.  E.  816;  Southern  Kansas  Ey.  22— Kelley  v.  New  York,  N.  H. 

Co.  V.  Pavey,  (1896)  57  Kan.  521,  &  H.  R.  Co.,  (1897)  168  Mass.  308. 
46  Pac.  969;  Hopkins  v.  Atlantic  "By  marriage,  borth  husband  and 
&  St.  L.  E.  E.,  (1857)  36  N.  H.  9,  wife  take  upon  themselves  certain 
72  Am.  Dec.  287.  different     duties     and     obligations 

20 — Hopkins    v.    Atlantic    &    St.      toward  each  other,  in  sickness  and 
L.  E.  E.,  supra,  health,    which    it    cannot    be    sup- 

21 — Eussell  V.  Come,  (1703)  2  posed  that  the  legislature  has  in- 
Ld.  Eaym.  1031,  92  Eng,  Eepr.  185;  tended  wholly  to  uproort."  Ac- 
Dix  V.  Brookes,  (1716)  1  Strange  cord:  Denver  &  E.  G.  E.  Co.  v. 
61,  93  Eng.  Repr.  385;  Kelley  v.  Young,  (1902)  30  Colo.  349,  70  Pac. 
New  York,  N.  H.  &  H,  E.  Co.,  688. 
(1897)    168   Mass.    308,   46   N.    E, 


352 


LAW  OF  DajMAGES 


age  to  the  husband,  for  which  he  has  a  right  to  he  com- 
pensated.^^ It  has  been  so  held  even  under  a  statute 
declaring  that  the  earnings  and  profits  of  a  married 
woman  accruing  from  a  trade  or  business,  or  her  services 
or  labor,  other  than  those  for  her  husband  or  family, 
shall  be  her  sole  and  separate  estate.^*  This  holding 
seems  perfectly  logical.  Such  a  statute  does  not  purport 
to  make  the  wife's  earnings  in  her  husband's  business 
her  own  property;  and  so  the  loss  of  her  services,  ren- 
dered for  her  husband,  even  outside  the  home,  under  no 
contract  for  remuneration,  is  her  husband's  loss. 

Although  a  mfe  has  already  recovered  in  her  oNvn 
right,  for  personal  injuries  inflicted  upon  her,  it  is  held 
that  her  husband  may  still  maintain  an  action  of  his  own 


23 — Georgia  By.,  etc.,  Co.  v.  Tiee, 
(1905)  124  Ga.  459,  52  S.  E.  916, 
4  Ann.  Cas.  200;  Citizens  St.  R. 
Co,  V.  Twiname,  (1890)  121  Ind. 
375,  23  N.  E.  159,  7  L.  R.  A.  352. 

24 — "The  husband  was  engaged 
in  the  millinery  business,  and  his 
wife,  by  reason  of  their  marital 
relations,  devoted  her  energy  and 
services  to  the  business  for  the 
benefit  of  the  husband  without  any 
contract  or  expectation  of  pay  for 
her  services,  and  she  sustained  an 
injury  on  account  of  the  negli- 
gence of  the  defendant,  and  by 
reason  of  which  the  husband  was 
deprived  of  her  services  in  his 
business,  which  the  wife  was  ac- 
customed to  perform,  but  was  pre- 
vented from  performing  by  reason 
of  the  injury.  There  might  be 
circumstances  existing  which  would 
entitle  the  wife,  in  an  action  for 
damages,  to  recover  for  the  value 
of  her  own  services,  and  especially 
this  is  true  when  the  wife  is  not 
engaged  in  carrying  on  any  trade 
or  business  on  her  own  account, 
or    performing    labor    for    persons 


other  than  her  husband,  and,  on 
the  contrary,  is  voluntarily  render- 
ing service  for  the  benefit  of  her 
husband,  and  he  is  entitled  to  re- 
cover as  well  in  one  class  of  serv- 
ices as  another.  In  other  words, 
the  husband  is  entitled  to  recover 
for  the  damage  sustained  on  ac- 
count of  the  loss  of  the  services 
of  the  wife,  and  the  value  of  her 
services,  and  loss  sustained  by  rea- 
son of  her  inability  to  perform 
them,  must  necessarily  depend  on 
the  character  and  value  of  the 
services  which  she  is  capable  to 
perform,  and  is  accustomed  to  per- 
form for  the  husband." — Citizens 
St.  R.  Co.  V.  Twiname,  (1890)  121 
Ind.  375,  23  N.  E.  159,  7  L.  R.  A. 
352,  citing:  Seitz  v.  Mitchell, 
(1876)  94  F.  S.  580,  24  L.  ed.  179; 
Ohio  &  M.  R.  Co.  V.  Cosby,  (1886) 
107  Ind.  32,  7  N.  E.  373;  Harring- 
ton V.  Gies,  (1881)  45  Mich.  374, 
8  N.  W.  87;  Belford  v.  Crane, 
(1863)  16  N.  J.  Eq.  265,  84  Am. 
Dec.  155;  Cregin  v.  Brooklyn  Cross- 
town  R.  Co.,  (1878)  75  N.  Y.  192, 
31    Am.  Rep.  459;   9   Am.   &  Eng. 


PERSONAL  INJURIES  353 

for  loss  of  consortium  caused  by  the  same  injury .^^  Like- 
wise, the  wife's  recovery  for  her  injuries  will  not  bar 
subsequent  recovery  by  the  husband  for  loss  of  her 
services.^^ 

196.  When  Damage  Is  the  Gist  of  the  Action. — Negli- 
gence alone  never  constitutes  a  basis  of  recovery;  and 
so,  if  the  defendant  has  merely  been  negligent  toward  the 
person  of  the  plaintiff,  and  his  negligence  has  not  brought 
about  a  battery  or  a  personal  injury  or  any  other  inva- 
sion of  the  plaintiff's  legal  rights,  there  can  of  course  be 
no  recovery.  If  A  drive  his  automobile  recklessly  and 
negligently  while  passing  B,  without  touching  B  or  in- 
flicting any  injury  upon  him,  B  can  prove  no  more  than 
merely  A's  negligence  without  the  completion  of  any 
technical  wrong  or  the  infliction  of  any  damage.  Where 
there  is  an  actual  battery,  however,  there  can  be  a  re- 
covery, just  as  in  the  case  of  a  mere  assault,  without 
proof  of  damage.^''^  In  the  ordinary  case  of  a  negligent 
personal  injury  to  a  passenger  on  a  railroad,  or  in  any 
other  action  grounded  in  negligence,  it  becomes  necessary 
to  prove  that  the  plaintiff  has  suffered  damage  as  a 
proximate  result  of  the  negligence.^^ 

Encyc.   of   Law    (1st   ed.)    p.   817,  wife   with   the   express  or  implied 

§8.  consent  of  the  husband;  and  sec- 
See   4   Ann.    Cas.    205-209,   note,  ond,  the  services  in  question  were 

"Damages    for    Loss    of    Earnings  performed    for    an    outside    party 

by  Married  Woman  in  Consequence  and    were    not    done   in   the    home 

of    Personal    Injuries,"    especially  or    in    connection    with    the    hus- 

pp.    207-208,    "Services    Rendered  band's  business. 

Husband  Outside  of  Household."  25 — Kelley  v.  New  York,  N.  H. 

But  see  Bechtol  v.  Ewing,  (1913)  &  H.  R.  Co.,  (1897)  168  Mass.  308, 

89  O.  St.  53,   105  N.  E.   72,  Ann.  46  N.  E.  1063,  38  L.  R.  A.  631,  60 

Cas.  1915  C  1183,  allowing  the  wife  Am.  St.   Rep.   397. 

to  maintain  a  contract  action  for  26 — Southern  Kansas  Ry.  Co.  v. 

services  rendered  by  herself  for  a  Pavey,  (18^6)  57  Kan.  521,  46  Pac, 

third    party    with    her    husband's  969. 

consent.      This    case,    however,    is  27 — Singer   Sewing  Machine   Co. 

distinguishable  in  two  ways  from.  v.   MethWn,    (1913)    184   Ala.    554, 

the    Twiname    Case:    first,   it   is   a  63  So.  997. 

contract  action  brought  by  the  28 — •Malcolm  v.  Louisville,  etc., 
Bauer  Dam.— 23 


354  LAW  OP  DAMAGES 

197.  Avoidable  Consequences. — The  duty  of  the  plain- 
tiff to  make  reasonable  efforts  to  avoid  ill  consequences 
of  defendant's  wrong,  plays  a  very  important  part  in 
cases  of  injury  to  the  person.  The  plaintiff  must,  upon 
receiving  an  injury  of  this  kind,  do  what  is  reasonable 
to  avoid  damage,  as  in  a  case  of  any  other  kind  of  injury. 
The  most  important  part  of  the  plaintiff's  duty  to  avoid 
consequences  is  his  duty  to  make  a  reasonable  attempt 
to  effect  a  cure  by  procuring  such  medical  services  as  are 
reasonably  necessary  for  that  purpose.  He  cannot  neg- 
lect his  injuries  and  thus  increase  them  and  have  larger 
damages  assessed  against  the  defendant.^^ 

198.  Mitigation. — The  pecuniary  loss  of  the  injured 
person  is  not  rendered  less  by  the  fact  that  he  has  an 
independent  income,  although,  as  to  bodily  suffering,  the 
possession  of  an  independent  income  may  be  considered ; 
for  his  suffering  may  be  greater  or  less  according  to  the 
degree  of  poverty  to  which  he  is  reduced  by  the  injury.^^ 
Nor  is  the  fact  that  the  plaintiff  has  received  a  sum  on  a 
policy  of  accident  insurance  to  be  taken  in  mitigation  of 
damages.  Accident  insurance  paid  for  by  the  plaintiff  is 
not  for  the  benefit  of  the  wrong-doing  defendant.^  ^  Like- 
wise, it  is  held  that  the  fact  that  the  plaintiff  has  medical 
attendance  free  of  charge  ^^  or  has  a  gratuitous  continua- 
tion of  his  salary  during  disability,^^  does  not  mitigate 
damages,  and  is  immaterial.^*   If  beneficial  relations  with 

R.  Co.,  (1908)  165  Ala.  337,  46  So.  48,  8  E.  R.  C.  439;  Pittsburgh,  etc., 

768,  18  L.  R.  A.   (N.  S.)   489,  130  R.  Co.  v.  Thompson,  (1870)   56  111. 

Am.  St.  Rep.  52.  138. 

29 — ^This  portion  of  the  subject  32 — City  of  Indianapolis  v.  Gas- 
is   more   fully   treated   in    Chapter  ton,   (1877)    58  Ind.  224. 
V.  33— Ohio,  etc.,  Ry.  Co.  v.  Dickcr- 

30— Phillips  V.  London  &  S.  W.  son,    (1877)    59   Ind.   317. 

Ry.  Co.,  (1879)  5  C.  P.  D.  280,  49  34 — See  American  note,  8  E.  R. 

L.  J.  C.  P.  233,  44  L.  T.  217.  C.  442  et  seq.,  where  some  of  the 

31 — P.radburn  v.   Great  Western  cases  herein  mentioned,  as  well  as 

Ry.  Co.,  (1874)  L.  R.  10  Ex.  1,  44  others,  are  summarized. 
L.  J.  Ex.  9,  31  L.  T.  464,  23  W.  R. 


PERSONAL  INJURIES  355 

third  parties  bring  him  such  advantages,  it  is  simply  the 
good  fortune  of  the  plaintiff. 

199.  Aggravation. — In  cases  of  personal  injury,  par- 
ticularly those  invoMng  an  assault  and  battery,  many 
circumstances  aggravate  damages.  Important  circum- 
stances in  a  case  of  assault  and  battery  are  the  publicity 
of  the  wrongful  act  and  the  reputation  of  the  defendant 
for  wealth.  Publicity  adds  to  the  wrong;  and,  since,  if 
the  defendant  is  reputed  to  be  a  wealthy  man,  his  stand- 
ing in  the  community  is  likely  to  be  more  imposing  and 
his  wrong  therefore  likely  to  carry  more  of  sting,  it 
follows  that  csddence  of  the  defendant's  wealth  is  admis- 
sible in  aggravation  of  damages.^^ 

200.  Exemplary  Damages  may  be  recovered  for  a  per- 
sonal injury,  as  in  other  cases,  if  it  is  shown  that  the 
defendant  acted  maliciously  or  wantonly,^®  or,  according 
to  many  holdings,  if  he  acted  with  negligence  so  gross  as 
to  evince  a  wanton  disregard  of  consequences.  Prob- 
ably questions  of  exemplary  damages  in  personal  injury 
cases  most  frequently  arise  when  gross  negligence  is 
alleged,  and,  in  many  courts,  gross  negligence  is  held  to 
be  a  ground  for  exemplary  damages,  if  so  gross  as  to 
amount  to  malice  in  law.^^ 

201.  Discretion  of  the  Jury. — The  elements  of  damage 
in  a  personal  injury  case  are  largely  non-pecuniary,  or, 
if  indirectly  pecuniary,  not  capable  of  very  exact  compu- 
tation; and  so  the  court  is  reluctant  to  interfere  with 
verdicts  as  being  excessive  or  inadequate.^^     Here,  as 

35 — Draper  v.  Baker,   (1884)    61  where   gross  negligence  is  shown: 

Wis.   450,   21   N.   W.    527,   50   Am.  Louisville   &   N.   R.   Co.   v.   Eaden, 

Rep.  143.  (1906)    122   Ky.   818,   29   Ky.  Law 

36— Hanna    v.    Sweeney,    (1906)  365,  93  S.  W.  7,  6  L.  R.  A.  (N.  8.) 

78  Conn.  492,  62  Atl.  785.  581. 

37 — Exemplary  damages  allowed  38 — See  Retan  v.  Lake  Shore  & 


356  LAW  OF  DAMAGES 

elsewhere,  however,  the  court  will  set  aside  a  verdict  or 
diminish  the  amount  thereof,  if  it  appears  clearly  that  it 
is  so  large  or  so  small  in  comparison  with  the  actual 
damage  sustained  and  in  consideration  of  the  circum- 
stances of  the  commission  of  the  wrong  as  to  indicate 
passion  or  prejudice  on  the  part  of  the  jury.^ 

202.  General  and  Special  Pleading. — In  the  case  of  a 
battery  not  alleged  by  the  pleadings  to  be  such  as  to  be 
serious,  the  plaintiff  must  specially  allege  that  he  has 
suffered  physical  pain,  in  order  to  recover  for  such  pain.*** 
If  a  serious  personal  injury  has  been  inflicted  upon  the 
plaintiff  by  the  defendant,  the  former  necessarily  suffers 
physical  pain  and  some  of  those  disagreeable  mental  ex- 
periences known  as  mental  suffering,  wounded  feelings, 
anger,  and  fright.  Because  these  are  sure  and  necessary 
results  of  the  wrong,  both  the  defendant  and  the  court 
know  of  their  existence,  so  that  they  need  not  be  specially 
apprised  of  their  infliction;  and  so  plaintiff  need  not 
specially  enumerate  these  elements  in  his  pleadings.*^ 
The  pleadings  must,  of  course,  show  that  the  injury  is 
serious,  in  order  to  dispense  with  the  necessity  of  spe- 
cially pleading  such  elements  of  damage. 

There  are  numerous  possible  but  not  necessary  proxi- 
mate results  of  personal  injuries.    The  plaintiff  has  been 

M.  S.  Ey.  Co.,  (1892)  94  Mich.  146,  and  yet  it  would  be  actionable,  for 

53  N.  W,  1094.  which    general    damages    could    be 

39 — See    voluminous  note,   "Ex-  recovered." — Irby  v.  Wilde,  (1907) 

cessiveness   of   verdicts   in   actions  150  Ala.  402,  43  So.  574.     See  also 

for    personal    injuries    other    than  Suth.  Dam.,  4th  ed.,  §  421. 
death,"  L.  R.  A.  1915 F  30,  which  41— Chicago   v.   McLean,    (1890) 

includes  personal  injuries  of  every  133  111.  148,  24  N.  E.  527,  8  K  R. 

kind.  A.  765.     "There  cannot  be  severe 

40 — "Physical  pain  may  be  pro-  physical    pain    without    a    certain, 

duced    by    a   battery,   but   it    does  amount   of  mental  suffering." 
not  necessarily  follow  from  every  Contra    as    to    mental    suffering: 

battery.     The  act  of  violence  may  Sloss-S.  S.  &  I.   Co.  v.  Dickinson, 

be  so  slight  as  not  to  produce  any  (1910)   167  Ala.  211,  52  So.  594,  2 

bodily  pain  and  suffering  whatever,  JJ.    dissenting. 


PERSONAL  INJURIES  357 

prevented  from  earning  money  in  his  particular  profes- 
sion or  business.  According  to  one  view,  if  he  does  not 
specially  state  in  his  pleadings  what  his  business  is  and 
how  much  his  loss  of  earnings,  the  defendant  knows  not 
the  real  nature  or  extent  of  the  damage  to  the  plaintiff 
by  reason  of  his  inability  to  perform  his  accustomed 
work,  and  so  is  not  in  a  position  to  prepare  a  defense; 
and  therefore  it  is  usually  required  that  the  plaintiff 
specially  plead  the  nature  of  profession,  occupation,  or 
business,  and  the  amount  of  his  loss  by  reason  of  his 
inability  to  attend  to  it.^^  According  to  another  view, 
the  plaintiff  may  recover  for  injury  to  his  general  earning 
capacity  without  specially  pleading  his  occupation,  and 
the  defendant  need  not  be  specially  notified  of  such  in- 
jury, in  the  pleadings,  it  being  sufficient  to  allege  merely 
that  the  plaintiff  has  been  rendered  unable  to  pursue  his 
accustomed  occupation.^^ 

In  the  case  of  a  x>ersonal  injury  not  so  alleged  as  to 
indicate  that  it  is  very  severe,  it  is  not  to  be  inferred 
from  the  mere  general  statement  of  the  injury  that  the 
plaintiff  has  had  to  incur  the  expense  incident  to  employ- 
ing a  physician  or  nurse  or  to  residing  in  a  hospital ;  and 
so  all  such  expenses  must  be  specially  alleged.**  If,  how- 
ever, the  plaintiff  alleges  a  very  serious  injury,  it  is  only 
reasonable  to  suppose  that  he  has  incurred  expenses  for 
the  purpose  of  applying  curative  measures,  and  so  he 
may  recover  for  these  expenses  even  under  a  general 
allegation.*^ 

42 — Homan   v.   Franklin   County,  -13 — Atwood  v.  Utah  Light,  etc., 

(1894)    90  la.   185,  57  N.  W.   703;  Co.,   (1914)   44  Utah  366,  140  Pae. 

Carlile  v.  Bentley,  (1908)   81  Neb.  137;    13    C^c.    187. 

715,  116  N.  W.  772.  44r— Central    Georgia   Power    Co. 

A  mere  allegation  that  plaintiff  v,    Fincher,    (1913)     141    Ga.    191, 

"has    been    permanently    disabled  80  S.  E.  645;  Blue  Grass  T.  Co.  v. 

from  labor"   was  held   insufficient  Ingles,    (1910)    140    Ky.    488,    131 

to    warrant    recovery    for    loss    of  S.    W.    278;    Suth.    Dam.,    4th    ed. 

earnings.     Coontz  v.  Missouri  Pae.  §  421. 

R.  Co.,   (1893)    115  Mo.  669,  22  S.  45— Suth.    Dam.,    4th    ed.    §421, 

"W.  572,  16  Am.  Neg.  Cas.  497.  citing  Evansville,   etc.,   R.    Co.    v. 


358  LAW  OF  DAMAGES 

In  an  action  for  negligent  personal  injury,  it  has  been 
held  that  plaintiff  can  recover  for  loss  of  earning  capac- 
ity as  a  school  teacher  and  for  money  paid  in  an  endeavor 
to  have  herself  cured  of  the  injuries,  where  she  has  spe- 
cially pleaded  and  proven  that  she  ''was  thereby  rendered 
incapable  of  performing  her  duties  of  school-teaching, 
which  she  has  pursued  with  great  success,  and  for  which 
she  had  been  specially  trained  and  educated,"  and  fur- 
ther that  **by  reason  of  such  injuries  *  *  *  she  did 
necessarily  lay  out  divers  sums  of  money  in  and  about 
endeavoring  to  have  herself  cured  of  her  said  injuries."  ^^ 

203.  Evidence. — On  the  measure  of  compensatory  dam- 
ages, only  such  evidence  is  admissible  as  will  throw  light 
upon  the  amount  of  actual  damage  suffered  by  the  plain- 
tiff. This  would  seem  axiomatic,  but  many  fruitless  at- 
tempts are  made  to  introduce  irrelevant  testimony  for 
the  purpose  of  ''working  on  the  feelings"  of  the  jury. 

In  an  action  for  negligent  personal  injury  to  plaintiff, 
testimony  as  to  the  number  of  persons  in  plaintiff's 
family,  plaintiff's  financial  standing,  and  the  circum- 
stances of  the  parties,  is  irrelevant.'*'^  The  fact  that  the 
plaintiff  has  a  wife  and  three  children  is  inadmissible  in 
evidence.*^  The  chief  reason  for  this  rule  is  that  the 
recovery  is  legally  for  the  direct  benefit  of  the  plaintiff 

Holcomb,   (1894)   9  Ind.  App.  198,  N,    E,   223;    Youngblood    v.    South 

36  N.  E.  39,  14  Am.  Neg.  Cas.  517.  Carolina   &    G.   R.    Co.,    (1901)    60 

46— Buff    V.    Georgia    Southern,  S.  Car.  9,  38  S.  E.  232,  85  Am.  St. 

etc.,  Ry.   Co.,    (1914)    67  Fla.   224,  Eep.   835   and  note. 

64  So.  782,  5  N.  C.  C.  A.  698.  48— Jones     &     Adams     Cc.      v. 
47 — Jones      &     Adams      Co.     v.  George,  supra.     See  also:  Pennsyl- 

George,  (1907)  227  111.  64,  81  N.  E.  vania   R.    Co.   v.   Roy,    (1880)    102 

4,  10  Ann.  Cas.  285,  citing:   1  El-  U.   S.  451,  26  L.  ed.   141;   Kansas 

liott  on  Evidence,  §178;   Barbour  City,  etc.,  R.  Co.  v.  Eagan,  (1902) 

County    V.    Horn,    (1872)    48    Ala.  64  Kan.  421,  67  Pac.  887;   Carlile 

566;  Chicago  v.  O'Brennan,  (1872)  v.    Bentley,    (1908)    81    Neb.    715, 

65  111.  160;  Pittsburg,  etc.,  R.  Co.  116  N.  W.  772;  and  Pennsylvania 
V.  Powders,  (1874)  74  111.  341;  Joliet  R.  Co.  v.  Books,  (1868)  57  Pa.  St. 
V.  Conway,  (1887)   119  HI.  489,  10  339,  98  Am.  Dec.  239. 


PERSONAL  INJURIES  359 

only,  and  liis  damages  are  not,  in  contemplation  of  law, 
either  increased  or  diminished  by  the  existence  of  his 
family.  It  is  further  urged,  in  many  of  the  cases,  that 
the  admission  of  such  evidence  needlessly  and  unduly 
excites  the  commiseration  and  sympathy  of  the  jurors.*^ 

204.  No  Right  of  Action  in  Child  for  Personal  Injuries 
Inflicted  Before  Its  Birth. — One  of  the  strangest  anom- 
alies of  the  case  law  of  our  times  is  that  a  child  injured 
and  even  permanently  deformed  by  a  negligent  or  willful 
wrong  inflicted  while  the  child  is  in  the  foetal  stage,  can 
maintain  no  action  whatever  against  the  wrongdoer.®*^  A 
very  square  holding  on  this  point  is  Allaire  v.  St.  Luke's 
Hospital,^  ^  which  is  based  upon  such  facts  as  to  leave  no 
doubt  as  to  the  intention  of  the  court  to  deny  flatly  that 
a  child  ever  has  a  right  of  action  for  injuries  inflicted 
upon  him  before  his  birth.  In  this  case,  the  plaintiff's 
mother,  within  a  few  days  of  her  delivery,  entered  de- 
fendant's hospital  as  a  patient.  Through  the  negligence 
of  the  defendant,  she  was  thrown  to  the  floor  of  an  ele- 
vator by  projections  in  the  elevator  shaft.  As  a  result, 
the  plaintiff  was  permanently  crippled.  Through  seem- 
ingly specious  reasoning,  the  plaintiff  was  denied  a  right 
of  action,  the  court  saying:  ''That  a  child  before  birth 
is,  in  fact,  a  part  of  the  mother  and  is  only  severed  from 
her  at  birth,  cannot,  we  think,  be  successfully  disputed. 
The  doctrine  of  the  civil  law  and  the  ecclesiastical  and 
admiralty  courts,  therefore,  that  an  unborn  child  may  be 
regarded  as  in  esse  for  some  purposes,  when  for  its  bene- 
fit, is  a  mere  legal  fiction,  which,  so  far  as  we  have  been 
able  to  discover,  has  not  been  indulged  in  by  the  courts  of 

49— E.    g,,   Pennsylvania  E.    Co.  Rep.    176,    7    Am.    Neg.    Eep.    427, 

V.    Baoks,    supra;     and    Jones    &  affirming    76  111.  App,   441;    Lipps 

Adams  Co.  v.  George,  supra,  v.    Milwaukee    Electric,    etc.,    Co., 

50— Allaire    v.    St.    Luke's   Hos-  (Wis.    1916)    159    N.    W.    916,    13 

pital,  (1900)   184  111.  359,  56  N.  E.  N.  C.  C.  A.  1113. 
638,  48  L.  K.  A.  225,  75  Am.  St.  51— Supra. 


360  LAW  OF  DAMAGES 

common  law  to  the  extent  of  allowing  an  action  by  an 
infant  for  injuries  occasioned  before  its  birtb.  If  the 
action  can  be  maintained,  it  necessarily  follows  that  an 
infant  may  maintain  an  action  against  its  own  mother  for 
injuries  occasioned  by  the  negligence  of  the  mother  preg- 
nant with  it.  We  are  of  opinion  that  the  action  will  not 
lie."  The  Allaire  Case  seems  a  flagrant  miscarriage  of 
justice.  There  was  negligence, — a  violation  of  a  duty  of 
the  defendant  toward  the  unborn  plaintiff.  Defendant 
knew,  or  must  have  known,  of  the  existence  of  the  plain- 
tiff. To  say  that  the  doctrine  that  an  unborn  child  is 
in  esse  is  a  mere  fiction,  is  to  say  what  is  manifestly  not 
true.  To  say  that  this  so-called  fiction  is  indulged  in  only 
for  the  benefit  of  the  child,  is  to  invite  the  query,  **In 
what  way  is  the  protection  of  the  child's  property  rights 
more  to  his  benefit  than  is  the  protection  of  his  body  ? ' ' 
and  the  further  query,  ''Would  it  not  be  'for  its  benefit' 
to  indulge  in  the  so-called  fiction  of  its  existence,  in  order 
to  protect  its  right  to  a  sound  body?"  As  Mr.  Justice 
Boggs  says  in  his  dissenting  opinion,  "Should  compen- 
sation for  his  injuries  be  denied  on  a  mere  theory,  known 
to  be  false,  that  the  injury^  was  not  to  his  person  but  to 
the  person  of  the  mother!"  The  Lipps  Case,^^  holding 
that  no  cause  of  action  accrues  to  an  infant  en  v&ntre  sa 
mere  for  injuries  received  before  it  could  be  born  viable, 
says :  ' '  Very  cogent  reasons  may  be  urged  for  a  contrary 
rule  where  the  infant  is  viable,  and  especially  so  in  cases 
where  the  defendant,  being  a  doctor  or  a  midwife,  has 
negligently  injured  an  unborn  child.  As  to  such  cases  we 
express  no  opinion." 

205.  No  Right  of  Action  in  Administrator  or  Relatives 
for  Wrongful  Death  of  Child  from  Injuries  Received  Be- 
fore Birth. — Likewise,  it  is  held  that,  where  the  child, 
after  birth,  dies  as  a  result  of  injuries  inflicted  upon  him 

52— (Wis.  1916)    159  N.  W.  916, 
13  N.  C.  C.  A.   1113. 


PERSONAL  INJURIES  361 

before  birth,  no  action  can  be  maintained  by  an  adminis- 
trator of  the  child.^^  Nor  can  an  action  be  maintained  by 
the  parents,  in  such  a  case,  for  the  wrongful  death  of  the 
child.^^  A  street  railway  company  negligently  injured 
a  pregnant  woman  as  she  left  its  car,  dragging  her  for 
some  distance,  and  so  injuring  the  unborn  child  that  it 
died  several  months  after  its  birth.  It  was  held  that  the 
parents  could  not  maintain  an  action  for  the  wrongful 
death.  This  decision  was  put  upon  the  ground  **that  the 
legislature  could  not  have  intended  (in  view  of  the  law 
existing  or  declared  at  the  time),  where  it  used  the  terms 
'persons  so  dying,'  to  include  a  person  who  died  after 
birth  from  injuries  received  by  its  mother  prior  to  its 
birth.  "^^  It  may  well  be  asked  whether  the  injury  is 
one  simply  to  the  mother  alone,  so  as  to  exclude  the  oper- 
ation of  the  statute. 

Furthermore,  it  is  held  that  a  statute  giving  to  the  next 
of  kin  a  right  of  action  for  wrongful  death,  does  not  give 
a  right  of  action  to  the  next  of  kin  of  a  child  that  dies 
soon  after  and  as  a  result  of  a  premature  birth  induced 
by  defendant's  wrongful  act.^^  A  ceiling  negligently 
maintained  by  the  defendant  fell  upon  a  woman  who  was 
pregnant,  causing  premature  birth  and  early  death  of 
the  child.    The  father,  as  next  of  kin,  brought  an  action 

53 — Dietrich  v.  Northampton,  sary  to  the  decision.  Yet  this 
(1884)  138  Mass.  14,  52  Am.  Rep.  case  is  solemnly  and  constantly 
242.  The  opinion  in  this  case,  writ-  cited  ta  support  every  kind  of 
ten  by  the  eminent  Justice  Holmes,  proposition  in  denial  of  the  right 
has  had  a  widespread  influence  in  of  the  child,  its  parents,  or  its  ad- 
shaping  the  law  on  the  whole  sub-  ministrator,  to  sue  for  injuries  in- 
ject discussed  in  this  section.  It  flicted  before  its  birth, 
shooild  be  noted,  however,  that  the  54 — Buel  v.  United  Railways  Co., 
principal  ground  of  the  decision  (1913)  248  Mo.  126,  154  S.  W.  71, 
was  that  the  statute  on  wrongful  4  N.  C.  C.  A.  129. 
death  did  not  include  the  case,  and  55 — Id. 

that  the  great  jurist's  remarks  in  56 — Gorman   v.   Budlong,    (1901) 

regard    to    the    possibility    or    im-  23  R.  I.  169,  49  Atl.  704,  55  L.  R. 

possibility  of  holding  one  liable  to  A.    118,    91   Am.    St.   Rep.    629,   10 

a  child  for   a   tort   inflicted  upon  Am.  Neg.  Rep.  188. 
him  before  birth,  were  not  neces- 


362  LAW  OF  DAIVIAGES 

for  the  wrongful  death  of  the  child.  It  was  held  that  the 
action  could  not  be  maintained,  the  court  saying:  *'In 
our  opinion,  one  cannot  maintain  an  action  for  injuries 
received  by  him  while  in  his  mother's  womb;  and  con- 
sequently his  next  of  kin,  under  the  statute,  cannot  main- 
tain an  action  therefor,  and  so  the  demurrer  must  be  sus- 
tained on  this  ground."  ^"^ 

CASE  ILLUSTRATIONS 

See  numerous  case  illustrations  in  Chapter  IV,  and  also  a  few 
in  Chapters  V,  VI,  and  VIII. 

57 — Gorman   v.   Budlong,    (1901)       A,  118,  91  Am.  St.  Eep.  629,  10  Am. 
23  E.  I.  169,  49  Atl.  704,  55  L.  E.      Neg.  Eep.  188. 


CHAPTER  XLIV 

Assault 

206.  Nature  of  Wrong". — An  assault  consists  of  an  at- 
tempt or  threat  to  commit  a  battery  upon  another,  accom- 
panied by  sufficient  overt  acts  to  place  him  in  reasonable 
fear  of  violence.  An  assault  may  or  may  not  be  accom- 
panied by  a  batterj^  From  the  nature  of  the  tort,  neither 
contact  nor  damage  is  the  gist  of  the  action.  In  fact,  if 
the  assault  is  accompanied  by  contact  of  the  defendant's 
person  with  that  of  the  plaintiff,  the  case  is  no  longer 
one  of  mere  assault,  but  is  one  of  assault  and  battery. 

207.  Elements  of  Damage. — In  the  case  of  an  ordinary- 
assault,  the  only  damage  usually  suffered  is  that  species 
of  mental  suffering  known  as  fright,  although  humiliation 
and  outraged  feelings  of  the  plaintiff  sometimes  figure  in 
the  case.  Where  the  assault  is  with  intent  to  commit 
rape,  fear,  humiliation,  and  shame,  all  constitute  elements 
of  damage.  All  of  these  elements  may  be  classified  under 
the  general  head  of  mental  suffering.  Because  of  the 
fact  that  contact  and  physical  loss  are  not  essential  ele- 
ments of  an  action  for  assault,  we  have  here  a  clear  case 
where  damages  for  mental  suffering  are  allowed  without 
proof  of  any  impact  or  physical  loss.  The  right  of  action 
for  assault  exists,  however,  even  without  proof  of  any 
mental  suffering.  If  plaintiff  proves  an  assault,  but  proves 
no  mental  suffering  or  damage  of  any  other  kind,  he  has  a 
right  to  nominal  damages,  as  he  has  proven  his  right  of 
action,  of  which  the  gist  is  not  damage.  On  principle, 
there  would  seem  to  be  no  reason  why  a  mere  assault, 
unaccompanied  by  a  battery  should  not  be  a  basis  of 

363 


364  LAW  OF  DAMAGES 

substantial  damages.  In  such  a  case,  a  technical  wrong 
has  been  committed,  and,  even  in  the  absence  of  physical 
injury,  the  plaintiff  may  have  been  done  a  very  serious 
wrong  and  may  have  suffered  very  real  damage.  Some 
cases  so  hold,^  but  some  hold  contra,  saying  that,  where 
no  physical  harm  is  done,  only  nominal  damages  are 
recoverable.* 

CASE  ILLUSTRATIONS 

1.  Defendant  went  to  the  home  of  plaintiff  and  her  husband, 
where  plaintiff  was  alone  with  her  young  children,  and  told  her 
that  he  wanted  her  to  move  out,  that  he  would  help  her  to  do  so, 
and  that  he  intended  to  bum  the  house.  He  pointed  a  gun  at 
her,  poured  kerosene  upon  the  side  of  the  house,  and  scratched 
a  match.  Held,  that  this  was  an  assault,  and  that  plaintiff  could 
recover  substantial  damages  for  her  fright  and  anxiety.^ 

2.  Defendant  angrily  pointed  an  unloaded  gun  at  plaintiff, 
and  snapped  it  two  or  three  times.  Held,  that  it  was  not  error 
for  the  court  to  instruct  the  jury  to  consider,  in  assessing  dam- 
ages, the  effect  that  the  finding  of  light  or  trivial  damages  would 
have  to  encourage  disturbances  and  breaches  of  the  peace,* 

1— Kline    V.    Kline,    (1902)    158  3— Kline    v.    Kline,    (1902)     158 

Ind.  602,  64  N.  E.  9,  58  L.  E.  A.  Tnd.  602,  64  N.  E.  9,  58  L.  R.  A. 

397;  SmaU  v.  Lonergan,  (1909)  81  397. 

Kan.  48,  105  Pac.  27,  25  L.  R.  A.  4— Beach  v.  Hancock,  (1853)   27 

(N.  S.)   976.  N.  H.  223,  59  Am.  Dec.  373. 

2— Shaffer   v.   Austin,    (1904)  68 
Kan.  234,  74  Pac.  1118. 


CHAPTER  XLV 

Slander  and  Libel 

208.  In  Greneral. — Defamation,  if  oral,  is  slander;  if 
written,  libel.  The  direct  damage  resulting  from  defama- 
tion is  injury  to  reputation.^  If  the  rules  of  the  law  of 
slander  and  libel  had  been  laid  on  a  rational,  and  not  an 
arbitrary,  basis,  we  might  have  had  the  two  subjects 
treated  largely,  if  not  entirely,  as  one ;  and  a  few  broad 
general  principles  would  then  have  governed  the  whole 
subject  of  defamation.2  The  courts  might  very  logically 
have  inquired,  ''under  the  rule  of  certainty  and  proxi- 
mate cause,  into  the  effect  of  the  words  spoken ; "  ^  but, 
instead,  they  have  laid  down  the  rule  that  certain  kinds 
of  statements,  if  written,  are  libelous  per  se,  and  that 
certain  classes  of  oral  utterance,  classes  marked  off  on 
different  lines,  are  slanderous  per  se.  This  arbitrary 
differentiation  between  slander  and  libel,  which  is  treated 

1 — "The    character    of    a    man.  false    and    malicious,    in    order    to 

strictly  signifies  what  he  is  in  him-  constitute    a   civil    injury." — Wal- 

self,  independently  of  the  opinion  ker's  American  Law  (11th  ed.),  p. 

others  may  entertain  of  him.    When,  575.     Althorugh  the  above  placing 

therefore,  we  speai  of  defamation  of  libel  as  a  class  of  slander  might 

of   character,  we  use   terms   inac-  commend  itself  to  us  on  principle 

curately.     But  the  reputation  of  a  if  we  could  deal  with  the  matter 

man  depends  wholly  upon  the  es-  unhampered  by  a  mass  of  law  on 

timation  in  which  others  hold  him,  the  subject,  the  student  will  learn, 

and  may   therefore   be   injured   by  from  the  sections  that  follow,  that 

defamation.     The  remedy  for  such  libel    is    treated    today    as    being 

injury  is  by  an  actiorn  on  the  case,  somewhat    more    than    a   mere    de- 

because   the    thing   affected,   being  partment   of   slander, 

intangible,   cannot   be   the   subject  2 — See  Colby  v.  Reynolds,  (1834) 

of    direct    violence.      Slander   may  6  Vt.  489,  27  Am.  Dec.  574. 

be   either   spoken   or   written.     In  3 — Sedg.    El.   Dam.    (2d    ed.)    p. 

the  latter  case,  it  is  called  libel.    In  164. 
either  case,  the  words  must  be  both 

365 


366  LAW  OF  DAMAGES 

in  the  sections  following,  has  led  to  much  of  difficulty  and 
confusion. 

209.  Slander. — The  making  of  mere  oral  defamatory 
statements  does  not  always  subject  one  to  civil  prosecu- 
tion. Merely  insulting  or  abusive  language  is  not  action- 
able. The  use  of  merely  unpleasant  or  reproachful 
words,  accompanied  by  any  amount  of  publicity,  will  not 
support  an  action  for  slander,  unless  they  are  such  as  to 
be  per  se  slanderous  or  in  fact  injurious  to  reputation.* 

An  oral  statement  is  actionable  per  se,  that  is,  action- 
able without  pleading  and  proof  of  special  damage,  only 
if  it  (1)  charges  one  with  something  criminal,  (2)  charges 
one  with  having  a  loathesome  or  infectious  disease,  likely 
to  cause  one  to  be  excluded  from  society,  or  (3)  charges 
one  with  anything  likely  to  injure  one  in  his  business, 
profession,  occupation,  or  office.^  Other  kinds  of  words 
causing  special  damage  are  actionable  only  on  pleading 
and  proof  of  such  special  damage. 

If  a  case  comes  under  any  of  these  three  heads,  it  can 
be  determined  at  the  threshold  that  the  plaintiff  has  a 
cause  of  action,  although  he  may  not  specially  have 
pleaded  damage.  The  law  presumes  that  such  utterances 
cause  damage.  As  to  the  amount  of  his  damages, — this 
must  depend  upon  the  facts  in  the  case,  and  so  they  may 
be  much  or  little.  It  can  be  said  at  the  beginning  of  the 
action  only  that  the  slander  set  up  indicates  a  cause  of 
action  and  that  it  is  of  itself  sufficient  basis  for  a  verdict 
for  damages. 

If  a  case  does  not  come  under  any  of  these  heads,  it  is 
necessary  that  the  plaintiff  plead  and  prove  that  he  has 

4— Bloss  V.  Tobey,  (1824)  2  Pick.  5— See  25  Cyc.  264,  et  seq.,  and 
(Mass.)  320.  Here  defendant  cases  there  cited.  It  will  be  no- 
charged  plaintiff  with  burning  his  ticed  that  some  authorities  divide 
own  store,  which  was  not  a  crime.  **(3)"  into  two  parts,  but  such 
Held,  not   slander.  division  is  unnecessary. 


SLANDER  AND  LIBEL  367 

been  damaged  and  in  what  manner  and  how  much.®  The 
plaintiff  may,  by  pleading  and  proving  particular  dam- 
age that  is  the  proximate  and  certain  result  of  the  de- 
fendant's wrong,  recover  substantial  damages  for  utter- 
ances that  are  slanderous  in  fact,  although  they  are  not 
slanderous  per  seJ 

210.  LibeL — Written  words,  if  published,  are  action- 
able per  se,  if  they  can  be  presumed,  as  a  matter  of  law, 
to  tend  to  blacken  the  plaintiff's  reputation  and  to  bring 
him  into  public  hatred,  contempt,  or  ridicule.^  The  fact 
that  the  words,  if  only  spoken,  would  not  have  been  ac- 
tionable per  se,  is  immaterial.^  If  the  words  used  do,  in 
fact,  bring  one  into  public  hatred,  contempt,  or  ridicule, 
they  are  libelous  in  fact,  that  is,  by  virtue  of  the  fact  that 
they  actually  do,  in  the  particular  case,  have  this  effect, 
even  if  they  are  not  libelous  per  se;  but,  in  such  a  case, 
the  person  libelled  makes  out  his  cause  of  action  only  by 
pleading  and  proving,  in  addition  to  the  fact  of  publica- 
tion, the  fact  that  he  is  actually  damaged.*^ 

210a.  Malice. — Actual  malice  of  the  defendant  in  the 
perpetration  of  the  wrong  is  not  essential  to  the  mainte- 

6— Lynch    v.    Knight,    (1861)    9  v.  Clap,  4  Mass.  163:     'A  libel  is 

H.  L.  Cas.  577,  11  Eng.  Repr.  854;  a  malicious   publication,  expressed 

Windsor   v.  Oliver,   (1871)   41   Ga.  either  in  printing  or  writing,  or  by 

538.  signs  and  pictures,  tending  either 

7 — Moore  v.   Meagher,    (1807)    1  to  blacken  the  memory  of  one  dead, 

Taunt.  39,  127  Eng.  Eepr.  745.  or   the   reputation    of    one  who   is 

8 — "The  attempts     *     *     •     to  alive,  and  expose  him  to  public  ha- 

define    a   libel,   though    practically  tred,    contempt,    or    ridicule.'  " — 

innumerable,   have   never   been    so  McGinnis  v.  Knapp,  (1892)  109  Mo, 

comprehensive  and  accurate  as  toi  131,  18  S.  W.   1134. 
comprehend    all    cases    that    may  9 — Cerveny     v.     Chicago     Daily 

arise.     Townsh.  Slander  &  L.   (4th  News  Co.,   (1891)    139  HI.  345,  28 

ed.)    §20.     And  such  attempts,  in  N.  E.  692,  13  L.  R.  A.  864;  Krug 

this  regard,  in  some  degree  resem-  v.  Pitass,  (1900)  162  N.  Y.  154,  56 

ble  similar  attempted  definitions  of  N.  E,  526,  76  Am.  St.  R«p.  317. 
fraud.    A  definition  which  has  met  10 — Strauss  v.  Meyer,  (1868)  48 

with    frequent     approval    is    that  HI.     385;     Caldwell    v.     Raymond, 

given  by  Parsons,  C,  J.,  in  Com.  (1855)   2  Abb.  Prac.  (N.  Y.)   193. 


368  LAW  OF  DAMAGES 

nance  of  an  action  for  slander  or  libel.  The  existence  of 
actual  malice  is  important  principally,  if  not  entirely,  in 
determining  whether  the  defendant's  communication,  if 
of  the  class  of  qualifiedly  privileged  communications,  is 
privileged  in  the  particular  case,  and  whether  exemplary 
damages  are  to  be  awarded.  The  ''malice  in  law"  so  often 
spoken  of  in  cases  of  defamation,  is  of  no  practical  im- 
portance in  this  field.  In  cases  wherein  the  words  are 
held  actionable  per  se,  courts  that  wholly  disregard 
"malice  in  law"  arrive  at  practically  the  same  identical 
net  results  as  do  those  which  attach  importance  to  it ;  for 
the  latter  conclusively  presume  malice  from  the  very  fact 
of  the  utterance  or  publication  of  words  that  are  action- 
able per  se,  thus  actually  eliminating  the  question  of 
actual  malice  as  effectually  as  do  the  courts  that  ignore 
the  existence  of  ''malice  in  law"  and  simply  say  that 
malice  is  not  a  necessary  ingredient  of  the  wrong.^^ 

In  a  case  involving  a  question  of  absolutely  privileged 
communication  (a  necessary  communication  by  an  official 
or  other  person  in  connection  with  public  business  or  the 
administration  of  justice),  the  matter  of  malice  cannot  be 
of  any  importance,  as  the  law  permits  no  inquiry  into  it. 
But  where  a  communication  is  only  qualifiedly  privileged 
(where  the  person  speaking  the  words  is  merely  perform- 
ing a  duty),  the  question  of  the  existence  of  malice  be- 
comes very  important;  for,  if  the  plaintiff  proves  that 
the  defendant  has,  in  such  a  case,  acted  with  actual  malice, 

11 — As  one  writer  has  well  said:  der  or  libel.  It  may  tend*  to  spread 
"Malice  is  said  to  be  an  essential  the  charge  of  the  slander  or  libel, 
to  slander  or  libel.  This  is  malice  or  it  may  induce  the  hearers  or 
in  law.  It  is  not  necessary.  It  is  readers  to  treat  it  more  lightly 
simply  a  fiction  of  law.  The  use  than  they  would  an  utterance  from 
of  the  term  means  nothing,  is  mis-  a  less  prejudiced  source.  It  may 
leading,  and  we  shall  disregard  it  be  that  the  reputation  will  not  suf- 
in  our  further  discussion  here."  fer  as  much  if  the  hearers  or  read- 
Willis  on  Damages,  p.  181.  ers  know  the  motive  of  the  charge 

"The  existence  of  actual  malice  to  be  actual  malice  as  when  they 

is  one  of  the  relevant  and  material  believe  the  charge  is  made  in  good 

circumstances  in  an  action  of  slan-  faith  and  without  malice,  or  it  may 


SLANDER  AND  LIBEL 


369 


he  is  liable,  and  otherwise  he  is  not  liable,  the  privilege 
depending  upon  the  absence  of  malice.^^ 

211.  Elements  of  Compensation. — Compensatory  dam- 
ages may  be  recovered  for  the  following  elements :  injury 
to  reputation ;  ^^  proximate  financial  losses,  including 
losses  in  business  or  prof ession ;  ^^  mental  suffering;  ^'^ 
and  any  items  of  proximate  damage  that  can  be  proved 
with  certainty. 

Where  a  statement  is  actionable  per  se,  injury  to  repu- 
tation is  presumed,  and  substantial  damages  may  be  re- 
covered without  special  pleading  and  proof  of  damage.^* 
It  is  sometimes  held  that  loss  of  an  election  is  not  a 
proper  element  of  damage  in  slander  or  libel,  as  damages 
for  such  a  result  are  too  remote  and  speculative ;  ^^  but 


be  exactly  the  reverse.  Each  case 
must  be  governed  by  its  own  cir- 
cumstances and  setting.  Further 
proof  of  actual  malice  may  dis- 
close the  injury  to  be  greater  in 
consequence  of  the  publication  of 
the  charge  in  actual  malice,  and 
hence  the  compensatory  damages 
will  be  greater  because  assessed  in 
proportion  to  the  actual  injury. 

"The  effect  upon  the  feelings  of 
him  against  whom  the  charge  is 
made  may  be  greater  where  he 
knows  and  must  carry  with  him  the 
knowledge  that  another  entertains 
actual  malice  against  him." — Cra- 
ney  v.  Donovan,  (1917)  92  Oonn. 
236,   102  Atl.   640. 

In  states  where,  as  in  Connect- 
icut, exemplary  damages  are  not  al- 
lowed, such  a  discussion  of  actual 
malice  as  the  above  is  of  great 
practical  importance,  since  the  ad- 
mission of  the  circumstance  of 
actual  malice  as  affecting  the 
amount  of  actual  damage  is  the 
only  means  of  increasing  damages 
because  of  defendant 's  bad  motive. 
Bauer  Dam. — 24 


In  this  same  case,  however,  the 
court  disclaims  any  intention  of 
mitigating  or  enhancing  actual 
damages,  but  justifies  the  admis- 
sion of  evidence  of  malice  as  tend- 
ing to  show  the  extent  of  the  ac- 
tual damage,  as  already  indicated. 

12— Bradley  v.  Heath,  (1831)  12 
Pick.  (Mass.)  163,  22  Am.  Dec.  418. 

13 — Markham  v.  Russell,  (1866) 
12  Allen  (Mass.)  573,  90  Am.  Dec. 
169. 

14 — Turner  v.  Hearst,  (1896) 
115  Calif.  394,  47  Pac.  129.  If  the 
words  are  actionable  per  se  in  that 
they  injure  the  plaintiff  in  his  busi- 
ness or  profession,  allegation  and 
proof  of  damage  are  unnecessary; 
damage  is  presumed.  Bee  Publish- 
ing Co.  V.  World  Publishing  Co., 
(1900)  59  Neb.  713,  82  N.  W.  28. 

lo — ^Markham  v.  Russell,  supra. 

16— Bradley  v.  Cramer,  (1886) 
66  Wis.  297,  28  N.  W.  372. 

17 — Taylor  v.  Moseley,  (1916) 
170  Ky.  592,  186  S.  W.  634,  Ann. 
Cas.  1918  B  1125  and  note. 


370  LAW  OF  DAMAGES 

there  are  decisions  contra}^  The  former  holding  cer- 
tainly encourages  freedom  of  discussion  of  the  merits 
and  demerits  of  the  candidates  for  political  office,  and 
seems  really  advantageous  from  the  standpoint  of  the 
public.  One  writer  places  public  office  in  the  same  cate- 
gory with  other  kinds  of  employment  and  urges  that  its 
loss  is  a  recoverable  element  of  damage.^®  There  is  little 
adjudication  on  the  subject.  A  general  falling  off  in  his 
business,  as  a  result  of  the  defamation,  may  be  shown  by 
the  plaintiff,  and  compensation  may  be  allowed  therefor. 
When  once  a  cause  of  action  is  made  out,  it  is  held  here, 
as  elsewhere,  that  the  plaintiff  may  recover  for  mental 
suffering;  although,  where  there  is  no  cause  of  action 
independently  of  the  mental  suffering,  there  cannot  be 
any  recovery  for  such  suffering  any  more  than  there  can 
be  under  similar  circumstances  in  any  other  field  of  the 
law  of  torts.^"  Ostracism  from  the  society  of  the  plain- 
tiff's former  companions,  adds  to  the  damage  of  the 
plaintiff,  so  that  evidence  of  such  ostracism  is  admissible 
on  the  question  of  damages.^^ 

In  the  case  of  the  publication  of  words  libelous  per  se, 
there  is  no  difficulty  in  holding  that  the  defamed  person 
may  recover  for  mental  suffering ;  ^^  and  it  has  even  been 


18 — See     Brewer     v.     Weakley,  Downey,   (1905)   26  App.  Cas.   (D, 

(1807)  2  Overt.  (Tenn.)  99,  5  Am.  C.)  258,  6  Ann.  Cas.  765;  Adams  v. 

Dec.  656.  Smith,   (1871)   58  111.  417;  Hanson 

19 — Townshend   on   Slander   and  v.   Krehbiel,    (1904)    68   Kan.   670, 

Libel,  §  247.  75  Pac.  1041,  64  L.  R.  A.  790,  104 

20 — For    general    principles,    see  Am.    St.    Rep.    422;    Markham    v. 

Chapter  XXI,  "  Mental  Suffering. "  Russell,    (1866)    12    Allen    (Mass.) 

21— Burt  V.  McBain,    (1874)    29  573,    90    Am,    Dec.    169;    Ellis    v. 

Mich.   260.  Brockton     Pub.     Co.,     (1908)     198 

22— Shattue  v.  McArthur,  (1886)  Mass.  538,  84  N.  E.  1018,  15  Ann. 

29    Fed.    136;    Taylor    v,    Hearst,  Cas.    83,    126    Am.    St.    Rep.    454; 

(1895)  107  Calif.  262,  40  Pac.  392;  McCollum     v.     Smith      (Mo.    App. 

Hassett  v.  Carroll,  (1911)  85  Conn.  1917)  199  S.  W.  271;  Nott  v.  Stod- 

23,  81  Atl.  1013,  Ann.  Cas.  1913  A  dard,    (1865)    38    Vt.    25,    88    Am. 

333;     Washington     Times     Co.     v.  Dec.    633, 


SLANDER  AND  LIBEL  371 

held  that  the  husband  of  the  defamed  person  may  recover 
for  loss  of  his  wife's  society  and  services.^^ 

Where  plaintiff  in  a  libel  case  offers  to  prove  her  de- 
pendence upon  her  own  exertions  for  a  living,  in  order 
to  show  that  impaired  capacity  to  labor,  because  of  mental 
suffering,  is  an  element  of  actual  damage,  such  evidence 
is  admissible.^* 

212.  Exemplary  Damages. — Exemplary  damages  are 
very  frequently  assessed  in  cases  of  slander  or  libel. 
Repetitions  of  the  defamation  may  be  considered  in 
aggravation  of  damages. ^^  Here,  as  elsewhere,  malice  is 
the  general  ground  upon  which  exemplary  damages  are 
awarded.  There  is,  however,  nothing  in  principle  or 
application  that  differentiates  these  cases  from  others 
wherein  such  damages  are  assessed,  and  the  student  is 
referred  to  the  general  treatment  of  exemplary  dam- 
ages.2® 

213.  Mitigation. — *'In  an  action  for  defamation  two 
classes  of  facts  are  pleadable  and  provable  in  mitigation 
of  damages :  First,  such  as  impeach  the  character  of  the 
plaintiff ;  secondly,  such  as  tend  to  negative  the  malicious 
motive  of  the  defendant."  ^^    If  the  plaintiff's  character 

23 — Garrison    v.    Sun    Printing,  tion  and  publication  of  defamatory 

etc.,  Association,  (1912)  207  N.  Y.  charges,'  as  well  as  the  language 

1,  100  N.  E.  430,  Ann.  Cas.  1914  0  of  the  charge,  are  admissible  facts, 

288.  tending  to  prorve  the  extent  of  the 

24 — ^Washington  Times  Co.  v.  injury  to  the  reputation  and  feel- 
Downey,  (1905)  26  App.  Cas.  (D.  ings,  and  tending  to  prove  the 
C.)  258,  6  Ann.  Cas.  765.  "More-  malice  of  the  charge." — Craney  v. 
over,  the  reasonable  apprehension  Donovan,  (1917)  92  Conn.  236,  102 
of  loss  of  employment  might  have  Atl.  640,  citing  Hassett  v.  Carroll, 
contributed  in  some  degree  to  the  (1911)  85  Conn.  23,  81  Atl.  1013, 
mental  suffering."  Thus  it  is  seen  Ann.  Cas.  1913  A  333. 
that  there  are  two  excellent  rea-  25 — Hatch  v.  Potter,  (1845)  2 
sons  for  the  admission  of  sucb  Gil.  (HI.)  725,  43  Am.  Dec.  88. 
testimony.  26 — Chapter  XI. 

"  'The  time,  place,  manner,  and  27 — Witcher  v.  Jones,  (1892)  17 

other  circumstances  of  the  prepara-  N.  Y.  Supp,  491;   quoted  with  ap- 


^^t  hAV^  OF  DAMAGES 

and  reputation  are  bad,  obviously  he  cannot  have  suffered 
so  much  loss  from  the  defamation  as  he  would  have  suf- 
fered if  he  had  been  a  man  of  good  character  and  repu- 
tation. His  loss  being  less,  it  is  reasonable  that  his  com- 
pensation should  be  less.^^  **It  cannot  be  just  that  a  man 
of  infamous  character  should,  for  the  same  libelous  mat- 
ter, be  entitled  to  equal  damages  with  the  man  of  unblem- 
ished reputation;  yet  such  must  be  the  result,  unless 
character  be  a  proper  subject  of  evidence  before  a 
jury. '  ^  29  It  may  be  shown  in  mitigation  both  that  the 
plaintiff's  general  reputation  as  to  moral  worth  is  bad, 
and  that  his  general  reputation  is  bad  as  to  the  feature 
covered  by  the  alleged  defamation.^**  A  fortiori  the  de- 
fendant has  a  right  to  mitigate  damages  by  pleading  and 
proving  the  truth  of  the  alleged  defamatory  statement.^  ^ 
If  the  defendant  made  the  alleged  statement  in  an  honest 
belief  in  its  truth  and  without  malice,  he  may  plead  and 
prove  these  facts  in  mitigation  of  exemplary  damages,^^ 
though  not  in  mitigation  of  purely  compensatory  dam- 
ages.^^ 

Where  it  is  shown  that  defendant  was,  at  the  time  of 
his  alleged  slanderous  utterance,  intoxicated,  the  fact  of 

proval  in  Dinkelspiel  v.  New  York  7  Pick.  (Mass.)   38.     The  truth  of 

Evening  Journal  Pub.   Co.,    (1903)  the     statement,     if     satisfactorily 

85   N.  Y.   Supp.  570,  42  Misc.   74.  proven,  is  held   to  be  a  complete 

Accord:  Morris  v.  Lachman,  (1885)  justificatiorn,     negativing     defend- 

68  Calif.  109,  8  Pac.  799;  Sheahan  ant's  liability.     Foss   v.   Hildreth, 

V.   Collins,    (1858)    20   111.    325,   71  (1865)  10  Allen  (Mass.)  76. 

Am.    Dec.    271;     Story    v.    Early,  32— Shattuc  v.  McArthur,  (1885) 

(1877)  86  HI.  461.  29  Fed.   136;    Callahan   v.  Ingram, 

28— Sheahan    v.    Callins,    supra;  (1894)  122  Mo.  355,  26  S.  W.  1020, 

Sickra    v.    Small,    (1895)    87    Me.  43  Am.  St.  Rep.  583. 

493,  33  Atl.  9,  47  Am.  St.  Rep.  344.  Under  soroe  circumstances,  a  re- 

29 — Stone    v.    Varney,    (1843)    7  traction     may     be     considered     in 

Mete.  (Mass.)  86,  39  Am.  Dec.  762.  mitigation  of  damages.     See  Suth. 

30 — Sickra      v.      Small,      supra;  Dam.  1231,  and  cases  there  cited. 

Lamos  v.  Snell,  (1833)  6  N.  H.  413,  33 — Callahan    v.    Ingram,  supra; 

25  Am.  Dec.  468.  Thompson   v.    Powning,    (1880)    15 

31— Thomas  v.  Dunaway,  (1863)  Nev.  195. 
30  HI.  373;  Sibley  v.  Marsh,  (1828) 


SLANDER  AND  LIBEL  ^§ 

his  intoxication  may  be  considered  in  mitigation  of  dam- 
ages.^* It  would  seem  that  there  are  two  excellent  rea- 
sons for  this  rule:  First,  the  drunkenness  of  defendant 
may  well  be  said  to  lessen  the  actual  damage  and  thus  to 
diminish  compensatory  damages, — for  the  words  of  a 
drunken  man,  if  his  drunkenness  is  known,  are  less  likely 
to  be  given  credence  and  to  injure  reputation;  and  sec- 
ond, evidence  of  the  drunkenness  of  the  defendant  at  the 
time  of  the  utterance  would  tend  to  negative  malice,  and 
thus  to  mitigate  exemplary  damages. 

214.  Proximity  and  Certainty. — The  rules  of  proxim- 
ity and  certainty  play  an  important  part  in  limiting  the 
elements  for  which  compensation  may  be  given.  Prob- 
ably in  no  field  can  a  plaintiff  conjure  up  any  more  con- 
sequences of  a  wrong  than  in  defamation ;  and  probably 
nowhere  are  any  more  of  the  alleged  consequences  remote 
or  uncertain.  The  rule  of  proximity  applies  to  both  gen- 
eral and  special  damages ;  and  the  plaintiff  cannot  escape 
the  rule  and  recover  for  remote  damage  by  simply  plead- 
ing it  specially .^^  Wliere  defendant  falsely  said  that  he 
had  carnal  connection  with  A,  the  wife  of  B,  and  A  and 
B  bring  an  action  against  defendant,  it  has  been  held 
that  an  action  does  not  lie,  although  A  has  lost  the  society 
of  her  friends,  and  has,  through  worry  over  the  matter, 
sustained  a  long  illness,  the  court  saying  that  the  damage 
alleged  is  not  a  natural  consequence  of  the  words 
spoken.^^  Circumstances  in  a  similar  case  might  be 
slightly  different  and  so  might  render  such  results  proxi- 
mate. 

Slanderous  words  imputing  to  a  wife  unchastity  before 
her  marriage  would  not  support  the  assessment  of  dam- 

34— Alderson  v.  Kahle,  (1914)  73  Georgia  v.  Kepford,  (1876)   45  la. 

W.   Va.   690,   80   S.   E,   1109,   Ann.  48;    Anonymous,    (1875)    60   N,   Y. 

Cas.   1916  E   561,  and   cases   there  262,  19  Am.  Rep,  174. 

cited.  36— Allsop    v.    AUsop,    (1860)    5 

35— Lynch   v.  Knight,    (1861)   9  Hurl,    &    N.    534,    157    Eng.   Repr. 

H.  L.  Cas.  577,  11  Eng.  Repr.  854;  1292. 


374  LAW  OF  DAJklAGES 

age  in  favor  of  the  wife  for  loss  of  consortium,  as  this  is 
not  a  proximate  result  of  such  wrong.^'^  Likewise,  false 
words  charging  a  young  woman  with  self -pollution,  will 
not  support  the  assessment  of  damages  for  loss  of  music 
lessons  and  a  silk  dress  which  her  father  refused  her  after 
hearing  the  charge.^^  The  defendant  is,  however,  liable 
for  all  proximate  consequences  of  his  act  of  def amation.^^ 

215.  Discretion  of  the  Jury. — Damages  for  slander  and 
libel  are  so  uncertain  and  indefinite  in  amount  that  it  is 
impossible  for  a  court  to  exercise  more  than  a  very  vague 
and  inefficient  control  over  the  discretion  of  the  jury  in 
these  cases.  ''This  is  not  the  case  of  the  greyhound,  of 
the  value  of  which  the  court  could  form  an  estimate,  and 
say  they  have  found  forty  times  too  much. ' '  ^*^  But, 
while,  from  the  nature  of  the  case,  it  is  not  usually  easy 
to  say  that  a  verdict  is  clearly  excessive,  there  exist  many 
cases  in  which  the  amount  of  the  verdict  is  so  far  out  of 
reason,  in  view  of  the  nature  of  the  defamation,  the 
extent  of  publicity  given  it,  and  the  other  relevant  facts 
in  the  case,  that  it  is  evident  that  the  jury  was  actuated 
by  passion  or  prejudice.  In  such  cases,  the  verdict  will 
be  set  aside  by  the  court,  as  in  other  classes  of  litigation.'*^ 

37— Lynch   v.   Knight,    (1861)    9  ty.      Burt    v.    McBain,    (1874)    29 

H.  L.  Cas.  577,  11  Eng.  Eepr.  854.  Mich.  260. 

38 — Anonymous,  (1875)  60  N.  Y.  40 — Gilbert        v.        Berkinshaw, 

262,   19  Am.   Rep.  174.     This  case  (1774)   Loft.  771. 

shows  the  working  of  the  arbitrary  "The  actual  pecuniary  damages 

rule  requiring  proof  of  special  dam-  in  actions  for  defamation,  as  well 

age  in  all  except  a  narrowly  limited  as  in  other  actions  for  torts,  can 

class  of  these  cases.     The  result  is  rarely  be  computed,  and  are  never 

regretted  by  Grcrver,  J.,  who  wrote  the    sole    rule    of    assessment." — 

the    opinion.      See    also    Peters    v.  Tillotson    v.    Cheetham,    (1808)    3 

Garth,    (1899)    20   Ky.   Law   1934,  Johns.  (N.  T.)  56,  3  Am.  Dec.  459, 

50  S.  W.  682.  quoted    in     Grable    v.     Margrave, 

39— Such   is   the   exclusion   of   a  (1842)   3  Scam.  (111.)   372,  38  Am. 

virtuous    young    woman    from    the  Dec.  88. 

society  in  which  she  had  formerly  41 — Peterson   v.   Western  Union 

moved,   as  a   result   of  slanderous  Tel.    Co.,    (1896)    65   Minn.   18,  67 

statements  charging  want  of  chasti-  N.  W.  646,  33  L.  R.  A.  302. 


SLANDER  AND  LIBEL  375 

CASE  ILLUSTRATIONS 

1.  Defendant  spoke  the  following  words  in  regard  to  plain- 
tiffs :  * '  They  have  sold  out ;  they  are  not  worth  fifty  cents  on  the 
dollar."  Held,  not  actionable  per  se.  Plaintiffs  were  not  en- 
gaged in  trade  at  the  time  the  words  were  spoken.  As  to  any 
damage, — plaintiffs  can  recover  for  it  only  if  they  plead  and 
prove  it.*2 

2.  A  orally  said  that  B  was  guilty  of  sodomy,  in  a  state 
wherein  sodomy  was  not  a  crime.    Held,  not  actionable  per  se.^^ 

3.  Defendant's  newspaper  called  plaintiff  an  ''anarchist." 
Held,  that  this  sustains  an  action  for  libel.'** 

4.  Buckstaff,  the  plaintiff,  was  called  by  defendant's  news- 
paper, ''Senator  Bucksniff,"  "His  majesty  Bucksniff,"  "A  legis- 
lative god,"  "Dearly-beloved  Bucksniff,"  "Divine  Senator," 
"Mighty  being,"  and  "Third  Ward  Omnipotence."  Held,  that 
these  words  are  libelous  per  se,  as  tending  to  bring  the  plaintiff 
into  ridicule  or  contempt.*^ 

5.  Defendant  published  a  statement  that  plaintiff  had  owed  a 
bill  for  medical  services  for  several  years,  that  he  had  been  sued, 
and,  having  no  other  defense  "cowardly  slinks  behind  that  of 
statutory  limitation,"  and  that  "such  a  course  is  not  exactly 
in  accordance  with  our  idea  of  strict  integrity."  Held,  not 
libelous.  "Since  the  law  recognizes  this  defense  as  legitimate 
and  honorable,  to  accuse  one  of  making  it  would  not  amount  to 
defamation."*^ 

6.  Defendants  published  an  article  stating  that  plaintiff,  a 
physician,  was  a  blockhead  or  fool,  and  appealing  to  all  the  Poles 
in  Buffalo  not  to  trust  themselves  or  their  families  to  his  pro- 
fessional care  when  he  hated  them  so  that  he  would  not  help  them 
if  he  could.    The  article  was  actionable  per  se.^"^ 

42— Windsor  v.  Oliver,  (1871)  41  46— Hollenbeck    v.   Hall,    (1897) 

Ga.  538.  103  la.  214,  72  N.  W.  518,  39  L.  E. 

43— Melvin  v.  Weiant,  (1880)  36  A.  734,  64  Am.  St.  Eep.  175;  citing 

O.  St.  184,  38  Am.  Eep.  572;  Davis  Bennett    v.    Williamson,    (1850)    4 

v.  Brown,   (1875)   27  O.  St.  326.  Sandf.  (N.  Y.)   60. 

44 — Cerveny    v.    Chicago    Daily  47— Krug   v.  Pitass,   (1900)    162 

News  Co.,   (1891)    139  111.  345,  28  N.  Y.  154,  56  N.  E.  526,  76  Am.  St. 

N.  E.  692,  13  L.  E.  A.  864.  Eep.  317. 

45— Buckstaff  v.  Viall,  (1893)  84 
Wis.  129,  54  N,  W,  111. 


376  LAW  OF  DAMAGES 

7.  Defendant  spoke  false  words  imputing  incontinence  to 
plaintiff,  who  had  been  accustomed  to  receive  many  invitations 
to  eat  meals  gratuitously.  As  a  result  of  the  false  utterance, 
plaintiff  no  longer  received  such  invitations  and  thereby  became 
greatly  impoverished.  Held,  that  such  damage  supported  an 
action  for  slander.^^ 

8.  Defendant's  agent,  mistaking  plaintiff's  identity,  ordered 
her  out  of  its  public  grounds,  seizing  her  by  the  arm  in  a  rough 
manner.  ""While  the  act  partakes  of  the  nature  of  defamation 
of  character  it  has  in  it,  in  addition,  some  of  the  elements  of  an 
assault,  although  strictly  speaking  it  is  not  either.  It  must  not 
be  understood,  however,  that  we  hold  mere  words  of  common 
abuse  actionable  per  se.  They  are  not  so  unless  a  special  injury 
be  shown.  But  if  an  actionable  wrong  is  otherwise  committed, 
it  can  be  shown  that  it  was  accompanied  with  words  of  common 
abuse  to  enhance  the  damages. '  *  Among  the  elements  to  be  al- 
lowed for  is  mental  suffering.*^ 

9.  Defendant's  newspapers  published  statements  that  the 
plaintiff,  a  young  married  woman,  moving  in  high  social  circles, 
and  possessed  of  a  good  reputation,  had  eloped  with  one  R.  No 
actual  malice  was  shown,  but  the  evidence  indicated  reckless- 
ness and  negligence  in  publishing  the  libel  without  making  any 
investigation  to  ascertain  the  truth  or  falsity  of  the  report. 
Held,  that  this  is  a  proper  case  for  vindictive  damages.^ ^ 

10.  Defamatory  matter  was  published  by  defendant,  to  the 

48 — Moore  v.  Meagher,  (1807)  1  was,  under  the  facts  and  the  law 

Taunt.  39,  127  Eng.  Repr.  745.    So  as  laid  down  in  the  former  opinion, 

also  where  the  plaintiff  has  been  entirely    removed    from    the    case, 

merely  cut  off  from  the  hospitality  This   was  the   view  taken    by  the 

of  friends.    Williams  v.  Hill,  (1838)  trial   court,  and   the   jury   was   so 

19  Wend.   (N.  T.)   305.  instructed.       Plaintiff's     recovery, 

49 — Davis    v.    Tacoma    Railway,  therefore,  was  limited  to  compensa- 

etc,  Co.,   (1904)   35  Wash.  203,  77  tory   damages.      Certain    questions 

Pac,  209,  66  L,  R.  A.  802.  asked     of     defendant's     witnesses 

50 — Smith  v.  Matthews,  (1897)  were  ruled  out  under  objections. 
152  N.  Y.  152,  46  N.  E.  164.  See  These  questions  were  addressed  to 
Taylor  v.  Hearst,  (1897)  118  Calif.  the  good  faith  of  the  publication, 
366,  50  Pac.  541,  from  which  the  and  to  the  negligence  of  the  pub- 
following  is  quoted:  "It  will  be  lisher.  But  good  faith  and  rea- 
observed  that  the  question  of  ex-  sonable  care  are  pertinent  inquiries 
press  malice,  which  may  be  evi-  where  the  question  of  punitive 
denced  either  by  a  willful  intent  damages  is  involved,  not  where,  the 
to  injure,  or  by  gross  carelessness,  matter  being  libelous  per  se,  and 


SLANDER  AND  LIBEL  377 

effect  that  plaintiff  and  Mrs.  Blake  had  eloped,  and  were  living 
together  in  adultery.  Defendant  has  a  right,  in  order  to  miti- 
gate damages,  to  show  that  plaintiff's  general  reputation  as  to 
morals,  is  bad;  and  that  his  general  reputation  as  to  the  traits 
covered  in  the  libel,  is  bad.  But  evidence  that  plaintiff's  conduct 
was  such  as  to  excite  the  suspicion  of  defendant,  is  not  admissible 
in  mitigation.  The  injury  caused  by  the  words,  and  not  the 
moral  culpability  of  the  speaker,  measures  the  damages.^^ 

11.  Defendant  circulated  a  printed  statement  that  a  judgment 
for  $129  had  been  recorded  against  plaintiff,  a  retail  merchant. 
As  a  result,  wholesale  dealers  refused  to  fill  plaintiff's  orders. 
Held,  that  plaintiff  cannot  recover  for  profits  lost.  Such  dam- 
ages are  too  remote  and  speculative.^ 2 

12.  Defendant  published  a  statement  that  plaintiff,  a  female 
rifle  expert,  was  a  victim  of  drugs,  that  she  was  arrested,  charged 
with  robbery,  and  fined  after  pleading  guilty,  and  that  she  was 
destitute  and  forced  to  aceept  shelter  from  an  old  colored  man. 
Plaintiff  seeks  damages  for  mental  suffering,  injury  to  health, 
and  consequent  inability  to  shoot  during  the  season  of  1903,  by 
reason  of  which  she  has  failed  to  earn  $150  per  week.  Held,  that 
she  may  recover  for  mental  suffering,  but  not  for  nervous  pros- 
tration, injury  to  health,  and  loss  of  wages.^^ 

13.  Defendant  orall}^  charged  plaintiff  with  unchastity.  Held 
that  ill  health,  although  actually  produced  by  the  slander,  is  not 
legally  a  natural  or  ordinary  consequence  of  the  slander,  and  so 
cannot  be  recovered  for.^^ 

14.  Defendant  said  plaintiff  was  guilty  of  larceny  and  adul- 
tery. Plaintiff's  wife  sued  him  for  a  divorce  on  the  ground  of 
inhuman  treatment.  This  is  not  a  proximate  consequence  of  the 
Blander.55 

its    publication    admitted,    the    re-  53 — Butler  v.  Hoboken  Printing 

covery  is  expressly  limited  to  com-  and  Publishing  Co.,  (1905)  73  N.  J. 

pensatory  damages;  for  a  plaintiff  Law  45,  62  Atl.  272.     It  is  to  be 

under  such  facts  is  entitled  to  cam-  noticed     that     plaintiff's     loss     of 

pensatory  damages,  without  regard  wages  did  not  result  from  failure 

to  the  good  faith  or  caution  which  to  procure  engagements  by  reason 

attended  the  publication."  of  loss  of  professional  standing. 

51— Sickra   v.    Small,    (1895)    87  5-1— Terwilliger  v.  Wands,  (1858) 

Me.  493,  33  Atl.  9,  47  Am.  St.  Rep.  17  N.  Y.  54,  72  Am.  Dec.  420. 

344.  55 — Georgia    v.   Kepford,    (1876) 

52— Bradstreet    Co.    v.    Oswald,  45  la.  48. 
(1895)  96  Ga.  396,  23  S.  E.  423. 


CHAPTER  XLVI 

Malicious  Prosecution" 

216.  In  General. — Malicious  prosecution  is  a  wrongful 
prosecution  of  one  person  by,  or  at  the  instigation  of, 
another,  in  either  a  civil  or  a  criminal  proceeding,  %vith- 
out  probable  cause.  In  order  to  maintain  his  action  for 
malicious  prosecution,  the  plaintiff  must  show  that  the 
wrongful  prosecution  terminated  in  his  favor.  It  is  held 
that  malice,  want  of  probable  cause,  and  damage  must 
concur  in  order  to  afford  a  cause  of  action ;  ^  but  the  very 
fact  of  the  maintenance  of  a  prosecution  without  prob- 
able cause  is,  according  to  the  better  view,  sufficient  to 
present  a  case  of  legal  malice,  or,  in  other  words,  from 
such  circumstances  the  law  infers  malice.^  According  to 
the  weight  of  authority  and  on  sound  principle,  it  is  not 
essential  to  the  maintenance  of  the  suit  that  the  person 
of  the  plaintiff  should  have  been  molested  or  his  property 
seized,  whether  the  wrongful  prosecution  was  criminal  or 
civil.^    It  has  been  held,  and  very  correctly,  it  would  seem, 

1— Herbener   v.    Crossan,    (1902)  Mills,  (Ala.  1918)  78  So.  204;  Whip- 

4  Pen.  (Del.)  38,  55  Atl.  223.  pie  v.  Fuller,  (1836)  11  Conn.  582, 

2 — Ross  V.  Kerr,  (1917)  30  Idaho  29  Am.  Dec.  330;  McCardle  v.  Mc- 

492,  167  Pac.  654;  Hurlbut  v.  Har-  Ginley,   (1882)   86  Ind.  538;  Brand 

denbrook,  (1892)   85  la,  606,  52  N.  v.  Hinchman,  (1888)   68  Mich.  590, 

W.  510;  Walser  v.  Thies,  (1874)  56  36  N.  W.  664,  13  Am.  St.  Rep.  362; 

Mo.  89.     But  a  suit  brought  mali-  Antcliff  v.  June,    (1890)    81  Mieh. 

ciously,  with  probable  cause,  does  477,  45  N.  W.  1019,  10  L.  R.  A.  621, 

not  sustain  an  action  for  malicious  21   Am,   St.  Rep.  533;   Eickhorff  v. 

prosecution.      Lipowicz    v.    Jervis,  Fidelity,  etc.,  Co.,  (1898)    74  Minn. 

(1904)    209    Pa.    315,    58    Atl,    619.  139,    76    N.    W.    1030;    McCormick 

Contra:  dictum  in  Walser  v.  Thies,  Harvesting  Machine  Co.  v.  Willan, 

supra.  (1901)  63  Neb.  391,  88  N.  W.  497, 

3 — ^Peerson    v.    Ashcraft    Cotton  93    Am.    St.    Rep,    449;    Kolka    v. 

378 


MALICIOUS  PROSECUTION  379 

on  principle,  that  where  a  writ  of  attachment  is  sued  out 
wrongfully  and  without  probable  cause  and  is  actually 
levied,  the  law  will  presume  some  injury  and  award  at 
least  nominal  damages.*  But  some  courts  hold  that, 
where  there  has  been  no  arrest  of  the  person  or  seizure 
of  the  property  of  the  plaintiff,  who  was  the  defendant  in 
the  former  action,  he  has  been  compensated  sufficiently 
by  being  awarded  costs  in  the  former  action.^  The  mod- 
ern tendency  is  toward  the  former  view;  and  this  view 
seems  the  more  logical,  for  otherwise  all  non-physical 
elements  of  damage,  such  as  loss  of  reputation  and  mental 
suffering,  must,  if  standing  alone,  go  without  compen- 
sation. The  usual  rules  of  certainty,  mitigation,  aggra- 
vation, and  exemplary  damages  prevail  here  as  elsewhere. 

217.  The  Elements  of  Damage  most  commonly  entering 
into  a  case  of  malicious  prosecution  are :  injury  to  repu- 
tation, loss  of  time,  injury  to  pecuniary  or  other  property 
rights,  counsel  fees  incurred  in  contesting  the  malicious 
prosecution,  and  loss  of  liberty  of  the  person.^  The  plain- 
Jones,  (1897)  6  N.  Dak.  461,  71  N.  saying  that  where  allowed  it  has 
W.  558,  66  Am.  St.  Kep.  615;  Clos-  not  done  so."— 18  E.  C.  L.  14. 
son  V.  Staples,   (1869)   42  Vt.  209,  See  also  16  Mich.  Law  Eev.  653. 

1  Am.  Kep.  316.    "It  is  argued  by  4 — Dorr  Cattle  Co.  v.  Des  Moines 

the    authorities    taking    this    view      National  Bank,  (1904)  127  la.  153, 
that  the  costs  which  the  law  gives      98  N.  W.  918,  4  Ann.  Cas.  519. 
a  successful  party  are  no  adequate  5 — Smith  v.  Michigan  Buggy  Co., 

compensation  for  the  time,  trouble  (1898)  175  111.  619,  51  N.  E.  569, 
and  expense  of  defending  a  mali-  67  Am.  St.  Kep.  242;  Wetmore  v. 
cious  and  groundless  civil  action.  Mellinger,  (1884)  64  la.  741,  18  N. 
The  party  sued  must  devorte  some  W.  870,  52  Am.  Rep.  465;  Potts  v. 
time  to  the  defense  of  the  suit;  Imlay,  (1816)  4  N.  J,  Law  330,  7 
he  must  look  up  his  evidence  and  Am.  Dec.  603;  Mayer  v.  Walter, 
employ  counsel.  This  waste  of  (1870)  64  Pa.  283. 
time  and  necessary  expenditure  of  6 — "If     *     *     *     the    malicious 

money,  by  its  results,  affects  the  prosecution  complained  of  is  found- 
property  of  the  defendant.  For  ed  upon  a  criminal  charge,  on  which 
these  expenses  the  costs  recovered  the  defendant  therein  was  arrested, 
in  the  action  are  no  compensation  he  has  a  right  to  indemnity  for  all 
at  all.  That  the  action  would  lead  the  injury  to  reputation,  feelings, 
to  endless  litigation  is  answered  by      health,  mind  and  person  caused  by 


380 


LAW  OF  DAMAGES 


tiff  has  a  clear  right  to  recover  his  expenses  in  defending 
against  the  malicious  prosecution,  and  this  right  is  in  no 
way  lessened  by  the  fact  that  some  one  else  has  paid 
these  expenses  for  him/  or  by  the  fact  that  he  has  not 
yet  paid  such  expenses.^ 

Illegal  treatment  of  the  plaintiff  by  the  jailer  is  not 
a  proximate  result  of  the  malicious  prosecution  and 
arrest,  and  so  it  cannot  properly  be  considered  an  element 
of  damage.*'  But  it  has  been  held  that  plaintiff  may  tes- 
tify to  the  filthy  condition  of  the  jail  and  his  sufferings 
while  confined  therein.^^ 

Injury  to  financial  credit  is  a  proper  element  of  dam- 
age, if  specially  pleaded.^^  In  some  instances  at  least, 
mental  suffering  is  a  proper  element.^^ 

Where  the  plaintiff  was  arrested  about  5  o  'clock  in  the 
afternoon,  taken  through  the  public  streets  of  a  city,  to 


the  arrest,  including  the  expenses 
of  his  defense." — Lytton  v.  Baird, 
(1883)  95  Ind.  349, 

See  Seidler  v.  Burns,  (1912)  86 
Conn.  249,  85  Atl.  369,  Ann.  Cas. 
1916  C  266. 

"We  cannot,  at  this  day,  shut 
our  eyes  to  the  fact  known  by 
everybody,  that  taxable  costs  af- 
ford a  very  partial  and  inadequate 
remuneration  for  the  necessary  ex- 
penses of  defending  an  unfounded 
suit.  "—Whipple  v.  Fuller,  (1836) 
11  Conn.  582,  29  Am.  Dec.  330,  ap- 
proved in  Linsley  v.  Bushnell, 
(1842)  15  Conn.  225,  38  Am.  Dec. 
79,  which  says:  "If  taxable  costs 
are  presumed  to  be  equivalent  to 
actual,  necessary  charges,  as  a  mat- 
ter of  law,  every  client  knows,  as 
a  matter  of  fact,  they  are  not. 
And  legal  fictions  should  never  be 
permitted  to  work  injustice.  This 
court  has  repudiated  this  notion." 

7— Krug  v.  Ward,  (1875)  77  HI, 
603, 


8 — 'Minneapolis  T.  M.  Co.  v. 
Regier,  (1897)  51  Neb.  402,  70  N. 
W.  934. 

9— Baer  v.  Chambers,  (1912)  67 
Wash.  357,  121  Pac.  843,  Ann.  Cas. 
1913  D  559. 

10— Grimes  v.  Greenblatt,  (1910) 
47  Colo.  495,  107  Pac.  1111,  19  Ann. 
Cas.  608. 

11— Donnell  v.  Jones,  (1848)  13 
Ala.  490;  Brand  v.  Hinchman, 
(1888)  68  Mich.  590,  36  N.  W.  664, 
13  Am.  St.  Rep.  362;  Mcintosh  v. 
Wales,  (1913)  21  Wyo.  397,  134 
Pac.  274,  Ann.  Cas.  1916  C  273. 

But  it  has  been  held  that  "in- 
juries to  credit  or  character  or 
business  are  toa  remote  and  specu- 
lative to  be  considered." — Camp- 
bell v.  Chamberlain,  (1860)  10  la. 
337;  Lowenstein  v.  Monroe,  (1880) 
55  la.  82,  7  N.  W.  406. 

12 — Parkhurst  v.  Masteller, 
(1881)  57  la.  474,  10  N.  W.  864. 


MALICIOUS  PROSECUTION  381 

the  police  station,  and  there  confined  until  the  next  morn- 
ing, the  circumstances  of  aggravation,  the  bodily  pain, 
and  the  injury  to  his  reputation  were  all  proper  elements 
of  damage.^ ^  On  the  question  what  elements  of  damage 
may  be  recovered  for  without  special  pleading  and  proof, 
much  depends  upon  the  stage  at  which  the  prosecution 
has  terminated.  If  the  defendant  has  merely  attempted, 
without  success,  to  have  the  plaintiff  indicted  for  a  mis- 
demeanor, there  has  been,  in  fact,  no  prosecution  at  all ; 
and  so,  in  such  a  case,  there  is  no  action  without  special 
pleading  and  proof  of  damage.  If  plaintiff  has  actually 
been  indicted,  tried  and  acquitted,  it  is  obvious  that  the 
cause  of  action  is  complete;  and,  where  the  elements  of 
arrest  and  detention  or  imprisonment  of  the  person  to 
await  trial  have  also  entered  into  the  case,  such  elements 
may  be  recovered  for.^* 

Where  defendant,  without  probable  cause,  prosecuted 
plaintiff  on  a  charge  of  embezzlement,  it  was  held  that, 
on  the  question  of  damages,  it  was  competent  for  plaintiff 
to  show:  the  expenses  to  which  he  was  put,  in  the  mali- 
ciously prosecuted  action,  in  employing  counsel  and  pro- 
curing sureties  on  his  bond ;  the  nature  of  his  business, 
the  tools  required  therein,  and  the  difficulty  in  getting 
tools  after  the  wrongful  prosecution ;  the  difficulty  which 
he  had  in  getting  employment  after  such  prosecution ;  the 
injury  to  his  feelings  and  to  his  reputation;  and  the 
indignity.^ '^ 

218.  Discretion  of  the  Jury. — The  nature  of  the  action 
is  such  that  any  exact  calculation  of  damages  is  impos- 
sible, and  courts  are,  in  most  of  these  cases,  unwilling  to 

13— Seidler  v.  Burns,    (1912)    86  15— Wheeler   v.    Hanson,    (1894) 

Conn.   249,  85  Atl.   369,  Ann.  Cas.  161  Mass.  370,  37  N.  E.  382,  42  Am. 

1916  C  266.  St.  Eep.  408, 

14 — Baer  v.  Chambers,  (1912)  67 
Wash.  357,  121  Pac.  843,  Ann.  Cas, 
1913 D  559, 


382  LAW  OF  DAMAGES 

say  that  the  verdict  is  excessive.    The  jury  is  considered 
peculiarly  the  proper  judge  of  the  amount  of  damages.^  ^ 

Where  defendant  had  wrongfully  sued  plaintiff  for 
$4,000  on  the  second  of  a  set  of  bills  of  exchange  and 
attached  his  property,  holding  it  for  about  four  months, 
a  verdict  for  $15,000  was  held  not  excessive.^  ^ 

In  determining  whether  a  verdict  is  excessive,  it  often 
becomes  necessary,  as  in  slander  or  libel,  to  consider  the 
reputation  of  the  plaintiff.  If  his  reputation  had  already 
been  bad,  that  fact  may  have  contributed  to  the  existence 
of  probable  cause ;  and  then  too,  an  already  bad  reputa- 
tion cannot  suffer  so  great  an  injury  as  can  a  good  one. 
So,  where  the  plaintiff,  a  man  of  bad  moral  character  and 
of  bad  reputation  for  truth  and  veracity,  was  arrested, 
but  not  incarcerated,  and  the  actual  amount  expended  by 
plaintiff  on  account  of  the  prosecution,  and  the  value  of 
his  time  lost,  did  not  exceed  $100  to  $150,  a  verdict  for 
$3,000  is  excessive.18 

Where  plaintiff  has  been  guilty  of  wrongful  and  illegal 
conduct  in  connection  with  the  matter  in  regard  to  which 
he  alleges  he  has  been  maliciously  prosecuted,  and  is 
guilty  of  a  wrong  in  the  premises  very  similar  to  the  one 
mistakenly  alleged  in  the  prosecution,  a  court  will  not 
uphold  a  very  large  verdict  in  his  favor.^* 

16 — ^Black    V.    Canadian    Pacific  that    plaintiff    had    falsely    repre- 

Ry.,  (1914)  218  Fed.  239.  sented     that     K     had     authorized 

17 — Weaver    v.   Page,    (1856)    6  plaintiff's  brother  to  take  certain 

Calif.  681.  property  away.     The  charge  could 

18 — Davis  V,  Seeley,  (1894)  91  not  be  sustained,  as  the  proof 
la.  583,  60  N.  W.  183,  51  Am.  St.  shorwed  only  that  plaintiff's  state- 
Rep.  356.  ment    had    been     that    plaintiff's 

19— Davis    V.    McMillan,    (1905)  brother  had   told  plaintiff  that  K 

142  Mich.  391,  105  N.  W.  862,  3  L.  had    given    such    permission.      The 

R.  A.  (N.  S.)  928,  7  Ann.  Cas.  854,  court  says,  in  setting  aside  a  ver- 

113   Am.   St.  Rep.   585.     Here   de-  diet  for  $4,000  damages:     "Though 

fendant  had  caused  plaintiff's  ar-  technically  the  particular  pretense 

rest  on  a  charge  of  obtaining  prop-  may   have   been   without    probable 

erty  under  false  pretenses,  stating  cause,  it  is  inferable  that  there  was 


MALICIOUS  PROSECUTION  383 

Where  plaintiff  was  arrested  and  prosecuted  on  a  mis- 
taken charge  of  shortage  in  his  accounts  as  bookkeeper, 
was  tricked  into  going  into  Canada,  where  the  charges 
were  made,  then  was  thrust  into  jail,  transported  a  long 
distance  in  chains,  refused  the  necessary  services  of  a 
physician,  again  placed  in  jail  and  kept  there  for  about  a 
month,  then  released  with  no  attempt  on  the  part  of  the 
prosecution  to  show  his  guilt,  and  with  the  admission  that 
a  mistake  had  been  made  and  that  there  was  no  case,  and 
was  finally  refused  transportation  back  to  his  home,  2,400 
miles  away,  which  had  been  promised  him  by  defendant, 
a  verdict  for  $25,000  is  not  excessive.^" 

219.  Exemplary  Damages  are  very  often  assessed.^^ 
Evidence  that  defendant,  after  wrongfully  causing  the 
prosecution  of  an  employee,  threatened  to  prevent  him 
from  holding  a  position  elsewhere,  and  that  he  inserted 
in  the  newspapers  a  statement  to  the  effect  that  he  had 
abandoned  the  prosecution  out  of  sympathy  with  the  fam- 
ily of  plaintiff,  is  '  *  amply  sufficient  to  establish  the  exist- 
ence of  actual  malice"  and  to  justify  the  assessment  of 
punitive  damages.-^  Circumstances  are  often  such  as  to 
warrant  the  assessment  of  heavy  damages.  Where  de- 
fendant prosecuted  plaintiff  on  a  false  criminal  charge  of 
having  committed  adultery  with  his  wife,  a  poor  sickly 
woman,  whom  defendant  compelled  to  testify  in  support 
of  his  charge,  threatening  her  with  a  butcher  knife,  the 

a  substantial  reason  for  believing  tiff   had   apparently   obtained   and 

that  plaintiff  had  unjustly  and  de-  kept    property    worth    upwards    of 

ceitfully     obtained     the     property  $2,000,  not  belonging  to  him. 

with  intent  to  cheat  and  defraud.  20 — Black    v.     Canadian    Pacific 

Under  these  circumstances  the  lib-  Ey.,  (191-i)   218  Fed.  239. 

erality  of  the  jury  is   remarkable,  21 — Lytton   v.   Baird,    (1883)    95 

especially  as  most  of  the  damages  Ind.   349;    Parkhurst   v.   Masteller, 

must   have    been   for   mortification  (1881)  57  la.  474,  10  N.  W.  864. 

and  wounded  feelings."     Stress  is  22 — Boss     v.     Kerr,     (1917)     30 

also  laid  upon  the  fact  that  plain-  Idaho  492,  167  Pac.  654. 


384  LAW  OF  DAMAGES 

court  allowed  a  verdict  for  $1,850  to  stand,  saying  that 
it  might  well  have  been  for  $5,000.2^ 

220.  Wrongful  Use  of  Process. — ^Very  similar  to  a  suit 
for  malicious  prosecution  is  the  action  for  wrongfully 
suing  out  the  process  of  a  court.  A  common  example 
of  this  is  the  action  for  wrongful  attachment  of  the  plain- 
tilf 's  property.  The  elements  of  damage  in  an  action  for 
wrongful  use  of  process  vary  according  to  the  nature  of 
the  case;  but,  in  general,  the  possible  elements  are  the 
same  as  in  malicious  prosecution.  These  elements  are 
recoverable  on  special  pleading  and  proof.^^ 

CASE  ILLUSTRATIONS 

1.  Plaintiff  and  her  husband  were  wrongfully  prosecuted  for 
larceny  by  defendants.  There  was  evidence  of  actual  malice  on 
the  part  of  one  of  the  defendants.  The  hearing  was  held  in  a 
country  precinct,  eighty  miles  from  the  county  seat,  where  the 
attorneys  resided,  and  plaintiff  had  to  pay  her  attorney  a  fee  of 
$250.  Plaintiff's  financial  credit  was  injured.  Held,  that 
punitive  damages  were  proper,  and  that  $500  was  not  exeessive.^^ 

2.  Plaintiff  proved  that,  in  defending  against  a  malicious 
prosecution,  he  spent  $150  for  counsel  fees  and  to  procure  the 
attendance  of  his  witnesses.  A  verdict  for  $5  is  set  aside  as 
inadequate.2^ 

23— Huber  v,  Zeisder,  (N.  Dak.  36— Waufle  v.  McLellan,   (1881) 

1917)  164  N.  W.  131.  51  Wis.  484,  8  N.  W.  300.    Former- 

34 — ^Lawrence       v.       Hagerman,  ly,  in  England,  the  court  would  not 

(1870)  56  ni.  68,  8  Am.  Rep.  674.  set  aside  as  inadequate  a  verdict 

25 — ^Mcintosh    v.   Wales,    (1913)  in  malicious  prosecution,  false  im- 

21   Wyo.   397,   134  Pac.   274,  Ann.  prisonment,  slander,  or  libel.     See 

Cas.  1916  C  273.  18  B.  C.  L.  76-77,  47  L.  R.  A.  43. 


CHAPTER  XLVn 

False  Impbisonment 

221.  The  Wrong. — Anyone  who  has  been  unlawfully 
deprived  of  his  liberty  to  go  about  as  he  pleases,  may 
maintain  against  the  wrongdoer  an  action  for  false  im- 
prisonment. The  imprisonment  may  be  with  or  without 
the  use  of  legal  machinery.  It  may  be  with  or  without 
malice.^ 

222.  Amount  ajid  Elements  of  Compensation.— Large 

damages  are  often  assessed  in  this  action.  In  arriving 
at  the  amount  of  damages,  it  is  necessary  to  consider  the 
character  and  duration  of  the  restraint  imposed  and  the 
circumstances.  Damages  for  all  injuries  proximately  and 
certainly  arising  from  the  imprisonment  may  be  assessed. 
The  elements  of  damage  vary  much  in  different  cases  and 
may  include  new  elements  in  a  new  case,  so  that  it  would 
be  hazardous  to  attempt  to  give  a  positively  exhaustive 
list  of  heads  of  damage.  Among  the  most  common  ele- 
ments of  damage  in  false  imprisonment  are :  loss  of  time, 
interruption  of  business  or  occupation,  inconvenience, 
discomfort,  physical  suffering,  mental  suffering,  humilia- 
tion, and  indignity .2 

Where  plaintiff  was  first  wrongfully  arrested  and  was 
held  until  rightfully  placed  under  arrest,  damages  are 

1— Colter    V.    Lower,    (1871)  35      Mich.  445,  28  N.  W.  695,  1  Am.  St. 

Ind.  285,  9  Am.  Rep.  735.  Rep.  608;   Cone  v.  Central  R.  Co., 

2— Beckwith  v.  Bean,   (1878)  98       (1898)    62  N.  J.  Law  99,  40   Atl. 

U.  S.  266,  25  L.  ed.  124.  780;      Craven      v.      Bloomingdale, 

See:  Ross  v.  Leggett,  (1886)  61       (1902)  171  N.  Y.  439,  64  N.  E.  169. 

385 
Bauer  Dam. — 25 


386  LAW  OF  DAJilAGES 

limited  to  the  detention  under  the  wrongful  arrest ;  ^  but 
of  course  a  new  wrongful  arrest  or  an  invalid  change  in 
an  irregular  warrant,  will  not  serve  to  end  the  false  im- 
prisonment and  so  will  not  restrict  the  damages  to  the 
preceding  period,  as  would  a  new  and  lawful  arrest.^ 

As  in  other  fields,  if  the  act  complained  of  be  trivial  in 
its  nature  and  in  its  injurious  results,  a  verdict  for  nomi- 
nal damages  is  proper.  So,  where  defendant  had  plain- 
tiff arrested  and  detained  only  long  enough  to  walk  across 
the  street,  and  the  jury  found  a  verdict  for  six  cents  and 
costs,  it  was  held  that  it  was  not  proper  for  the  court  to 
interfere  with  the  verdict.^ 

Circumstances  of  aggravation  and  of  mitigation  should 
be  considered,  and,  in  a  proper  case,  exemplary  damages 
may  be  allowed.^ 

Where  defendants,  army  officers,  wrongfully,  but  in 
good  faith,  imprisoned  plaintiff  under  a  military  order, 
without  a  warrant,  for  aiding  and  abetting  soldiers  to 
desert,  it  was  held  that  the  fact  that  defendants  acted  in 
good  faith,  in  an  effort  to  do  their  duty  in  protection  of 
the  army,  is  admissible  in   mitigation  of  damages/ 

The  damages  are  largely  in  the  discretion  of  the  jury.^ 

223.  Proximity  and  Certainty. — Numerous  and  varied 
consequential  losses  frequently  result  from  false  impris- 

3 — McCullough      V.      Greenfield,  (1764)   2  Wila.  244,  95  Eng.  Repr, 

(1903)  133  Mich.  463,  95  N.  W.  532,  790.     "An  examination  of  all  the 

62  L.  R.  A.  906.  cases  upon  both  sides  of  this  ques- 

4 — Harris  v.  McReynolds,  (1898)  tion  clearly  demonstrates  that  there 

10  Colo.  App.  532,  51  Pac.  1016.  is   no  uniform   rule  by  which   the 

5 — Henderson     v.     McReynolds,  amount  of  damages  can  be  meas- 

(1891)  14  N.  Y.  Supp.  351,  ured.    There  is  the  widest  diversity 

6 — ^Hawk  V.  Ridgway,  (1864)  33  of  opinion  among  the  courts  as  to 

111.  473;  Ross  v.  Leggett,  (1886)  Gl  the  judgments  which   shall   be  al- 

Mich.  445,  28  N.  W.  695,  1  Am.  St.  lowed  to  stand.    The  range  is  wider 

Rep.  608.  probably  in  such  cases  than  in  any 

/— Beckwith  v.  Bean,  (1878)  98  other.  "—Union  Deport  &  R.  Co.  v. 

U.  S.  266,  25  L.  ed.  124.  Smith,  (1891)  16  Colo.  361,  27  Pae. 

8 — Beardmore      v.      Carrington.  329- 


FALSE  IMPRISONMENT  387 

onment;  but  the  plaintiff  can  be  compensated  for  only 
those  losses  which  occur  as  the  proximate  results  of  the 
wrong  and  whose  causal  connection  with  the  tort  can  be 
proved  with  reasonable  certainty. 

Where  plaintiff,  before  recovering  from  the  amputa- 
tion of  an  arm,  was  wrongfully  imprisoned,  and,  subse- 
quently had  to  undergo  a  second  amputation  because  of 
infection,  of  which  the  cause,  so  far  as  the  evidence  indi- 
cates,  is  uncertain,  it  has  been  held  erroneous  not  to  with- 
draw this  element  from  the  consideration  of  the  jury.® 

It  has  been  held  that  the  publication  in  a  newspaper  of 
the  fact  of  the  arrest  and  detention  of  the  plaintiff  is 
''such  a  natural,  usual,  and  ordinary  consequence  of  de- 
fendant's act  that  it  must  be  deemed  to  have  been  con- 
templated.'* ^^ 

CASE  ILLUSTRATIONS 

1.  Defendant,  a  policeman,  wrongfully  arrested  plaintiff,  a 
seventeen-year-old  girl  of  good  reputation,  took  her  to  the  police 
headquarters  and  interviewed  her,  exhibiting  firearms  in  a 
threatening  manner.  His  only  reason  for  arresting  her  was  that 
she  had  the  Christian  name  "Marie,"  that  of  the  girl  that  he 
was  trying  to  apprehend.  Held,  that  a  verdict  for  $750  damages 
is  not  excessive.^  ^ 

2.  Plaintiff,  in  an  action  for  false  imprisonment,  offers  to 
prove  that  he  has  a  wife  and  family.     This  is  irrelevant.^2 

3.  Defendant,  penitentiary  warden,  under  a  misapprehension 
of  the  law,  wrongfully  held  and  worked  plaintiff  for  about  two 
hours  and  a  half  after  presentation  of  plaintiff's  pardon.  Held, 
that  a  verdict  for  plaintiff  for  $1,000  should  be  reduced  to  $25.^3 

9 — Spain   V.    Oregon-Washington  12 — Bergerson  v.  Peytom,  (1900) 

E.  &  N.   Co.,   (1915)    78  Ore.   355,  106  Wis.  377,  82  N.  W.  291,  80  Am. 

153  Pac.  470,  Ann.  Gas.  1917  E  1104.  St,  Eep.  33. 

10--Filer    v.    Smith,    (1893)    96  13— Weigel  v.  McCloskey,  (1914) 

Mich.  347,  55  N.  W.  999,  35  Am.  113  Ark.  1,  166  S.  W.  944,  Ann.  Oas. 

St.  Eep.  603.  1916  C  503. 

11— Eoss  V.  Kohler,  (1915)  163 
Ky.  583,  174  S.  W.  36,  L.  E.  A. 
1915 D  621. 


CHAPTER  XLVra 

Fraud  and  Deceit 

224.  Damage  the  Gist  of  the  Action. — Damage  is  the 
gist  of  actions  for  fraud  and  deceit.  It  is  clear  that  the 
mere  telling  of  a  lie  or  practice  of  deception  does  not  give 
rise  to  any  action  whatever,  if  no  damage  to  the  plaintiff 
has  resulted.  Mere  falsifying  by  one  person  does  not 
invade  any  right  of  another.  Therefore,  nominal  dam- 
ages, properly  so-called,  can  never  be  recovered  in  an 
action  for  deceit  or  fraud.^ 

225.  Measure  of  Damages. — The  great  disagreement 
in  this  field  is  in  regard  to  the  method  of  arriving  at  the 
measure  of  substantial  damages.  Is  the  plaintiff  entitled 
to  the  value  of  the  bargain  which  he  has  been  inveigled 
into  believing  he  is  getting  by  making  the  contract  he  has 
been  fraudulently  induced  to  make,  or  is  he  entitled  sim- 
ply to  be  restored  to  the  position  in  which  he  would  have 
been  if  he  had  never  been  deceived?  The  weight  of 
authority  gives  the  plaintiff  the  value  of  his  bargain,  thus 
causing  the  action  to  savor  of  contract  rather  than  of 
tort,  so  far  as  the  measure  of  damages  is  concerned.  Most 
courts  allow  the  plaintiff  the   difference   between  the 

1 — ^Bartlett  v.  Blaine,  (1876)  83  sentations,    the    necessary    allega- 

Hl.   25,   25  Am.   Rep.   346;    Bailey  tioms  are:     First.     The  fraudulent 

V.    London    Guarantee,    etc.,    Co.,  representation  relied  upon  to  sus- 

(Ind.   App.   1918)    121   N.  E.   128;  tain  the  cause  of  actiom.     Second. 

Morgan   v.   Bliss,    (1806)    2   Mass.  The  falsity  of  the  representation. 

Ill;  Jex  V.  Straus,   (1890)   122  N.  Third.    The  scienter.    Fourth.   The 

Y.   293,   25  N.  E.  478;   Farrar  v.  intent  to  deceive.     Fifth.     Proper 

Alston,  (1826)  12  N.  Car.  (1  Dev.)  damages.  "—Brown       v.       Morrill, 

69.     "It  is  elemental  that,  in   an  (1907)    105   N.    T.    Supp.    191,    55 

action  for  deceit  and  false  repre-  Misc.  224. 

388 


FRAUD  AND  DECEIT 


389 


fraudulently  represented  value  of  the  thing  he  has  been 
deceived  into  contracting  for  and  its  real  value.^  This 
rule,  although  doubtless  producing  substantial  justice  be- 
tween the  parties,  is  anomalous,  being  contrary  to  the 
usual  principles  of  damages  in  torts.  Usually,  in  torts, 
the  defendant  is  compelled  to  respond  in  such  damages 
as  will  place  the  plaintiff  where  he  would  have  been  if 
the  wrong  had  never  been  committed.  Courts  giving  the 
plaintiff  only  the  difference  between  the  amount  he  has 
paid  or  the  value  of  property  to  which  he  has  transferred 
title  and  the  value  of  the  thing  obtained  in  return,  urge 
very  plausibly  that  the  plaintiff  cannot  have  a  contract 
measure  of  damages  in  a  tort  action,  and  that  he  must,  in 
order  to  have  contract  rules  apply,  sue  on  his  contract.^ 
Where  the  defendant  has,  by  his  fraud,  caused  the 


2— Drew  v.  Beall,  (1871)  62  111. 
164;  Valdenaire  v.  Henry,  (Ind. 
App.  1919)  121  N.  E.  550;  Stiles 
V.  White,  (1846)  11  Mete.  (Mass.) 
356,  45  Am.  Dec.  214.  In  Drew  v. 
Beall,  supra,  the  court  frankly 
treats  an  action  on  the  case  for 
fraud  and  deceit  in  inducing  a  con- 
tract as  if  it  were  a  contract  ac- 
tion, so  far  as  damages  are  con- 
cerned, saying:  "It  was  not  for 
the  jury  to  make  a  new  contract 
for  them." 

"It  is  now  well  settled  that,  in 
actions  for  deceit  or  breach  orf  war- 
ranty, the  measure  of  damages  is 
the  difference  between  the  actual 
value  of  the  property  at  the  time 
of  the  purchase  and  its  value  if 
the  property  had  been  what  it 
was  represented  or  warranted  to 
be.  •  ♦  *  This  is  the  only  rule 
which  will  give  the  purchaser 
adequate  damages  for  not  having 
the  thing  which  the  defendant  un- 
dertook to  sell  him.  To  allow  to 
the  plaintiff  (as  the  learned  counsel 


for  defendant  argued  in  this  case) 
only  the  difference  between  the 
real  value  of  the  property  and  the 
price  which  he  was  induced  to  pay 
for  it  would  be  to  make  any  ad- 
vantage lawfully  secured  to  the  in- 
nocent purchaser  in  the  original 
bargain  inure  to  the  benefit  of  the 
wrongdoer,  and,  in  proportion  as 
the  original  price  was  low,  would 
afford  a  protection  to  the  party  who 
had  broken,  at  the  expense  of  the 
party  who  was  ready  to  abide  by, 
the  terms  of  the  contract." — 
Morse  v.  Hutchins,  (1869)  102 
Mass.  439. 

3— Smith  V.  Bolles,  (1889)  132 
U.  S.  125,  33  L.  ed.  279,  10  Sup. 
Ct.  39.  See  also  Peek  v.  Derry, 
[1887]  L.  K.  Ch.  Div.  541.  "What 
the  plaintiff  might  have  gained  is 
not  tLe  question,  but  what  he  had 
lost  by  being  deceived  into  the 
purchase.  The  suit  was  not  brought 
for  breach  of  contract." — Fuller, 
C.  J.,  in  Smith  v.  BoUes,  supra. 


390  LAW  OF  DAMAGES 

plaintiff  to  enter  into  a  disadvantageous  contract  with  a 
third  party,  the  mere  fact  that  the  contract  is  valid  does 
not  prevent  the  defendant  from  being  liable.  In  fact,  even 
though  the  contract  with  the  third  party  is  marriage,  so 
that  the  parties  take  each  other  ''for  better  or  for 
worse,"  the  person  who  has  fraudulently  induced  the 
marriage  is  liable.  In  such  a  case,  the  defendant  is  bound 
to  make  good  his  representations.^ 

Where  a  landlord  misrepresents  the  amount  of  the 
leased  land  to  his  tenant,  among  the  recoverable  elements 
of  damage  are  the  reasonable  expenditures  by  the  tenant 
in  preparation  to  cultivate  the  land." 

Where  the  defendant  has  induced  the  plaintiff  to  marry 
a  third  party,  by  a  fraudulent  representation  that  such 
third  party  has  a  certain  amount  of  property,  the  jury 
should  be  instructed  to  find  what  amount  will  make  good 
her  loss,  present  and  prospective,  reasonably  certain  to 
occur,  considering  her  expectancy  of  life  and  that  of  her 
husband.* 

4— Beach  v.  Beach,   (1913)   160         5— McNeer   v.   Norfleet,    (1917) 

la,  346,  141  N.  W.  921,  46  L.  R.  A.  113  Miss.  611,  74  So.  577,  Ann.  Cas. 

(N.  S.)   98,  Ann.  Cas.  1915  D  216;  1918  E  436. 

Piper  V.  Hoard,  (1887)  107  N.  T.  6— Beach  v.  Beach,  (1913)  160 
73,  13  N.  E.  626,  1  Am.  St.  Rep.  789.  la.  346,  141  N.  W.  921,  46  L.  R.  A. 
See  Blossorm  v.  Barrett,  (1868)  37  (N.  S.)  98,  Ann.  Cas.  1915  D  216; 
N.  Y.  434,  97  Am.  Dec.  747,  where  Blossom  v.  Barrett,  (1868)  37  N. 
defendant  had  fraudulently  induced  Y.  434,  97  Am.  Dec,  747;  Piper  v. 
plaintiff  to  contract  a  void  mar-  Hoard,  (1887)  107  N.  Y.  73,  13  N. 
riage.  See  also  Morrill  v.  Palmer,  E.  626,  1  Am.  St.  Rep.  789,  damages 
(1895)  68  Vt.  1,  33  Atl.  829,  33  L.  assessed  for  fraudulent  inducement 
R.  A.  411,  where  defendant,  a  mar-  to  enter  void  marriage;  Pollock  v. 
ried  man,  had  fraudulently  induced  Sullivan,  (1880)  53  Vt.  507,  38  Am. 
plaintiff  to  marry  him  and  live  Rep.  702,  action  maintained  where 
with  him  for  30  years,  until  she  defendant,  a  married  man,  fraud- 
learned  of  the  fraud.  A  similar  ulently  induced  plaintiff  to  enter 
case  is  Pollock  v.  Sullivan,  (1880)  a  contract  to  marry  him;  Morrill 
53  Vt.  507,  38  Am.  Rep.  702.  See  v.  Palmer,  (1895)  68  Vt.  1,  33  Atl. 
also  Sears  v.  Wegner,  (1907)  150  829,  33  L.  R.  A.  411. 
Mich.  388,  114  N.  W.  224,  14  L.  R.  Contra:  Brennen  v.  Brennen, 
A.  (N.  S.)  819.  (1890)  19  Ont.  Rep.  327. 


FEAUD  AND  DECEIT  391 

The  element  of  uncertainty  as  to  amount  of  damage,  in 
this  case,  does  not  prevent  the  assessment  of  any  dam- 
agesJ 

Fraudulently  inducing  a  person  to  make  a  loan  to  an 
irresponsible  person,  is  a  ground  of  action  against  the  de- 
ceiver. The  measure  of  damages  is  the  excess  of  the 
amount  of  the  loan  over  the  value  of  the  security  taken.^ 

226.  Proximity  of  Cause. — A  defrauder  is  not  respon- 
sible for  all  ill  happenings  after  his  fraud,  but  only  for 
such  as  are  proximate  to  his  wrong.® 

227.  Certainty. — The  usual  rule  as  to  certainty  ap- 
plies,^® with  its  usual  corollary  that  only  reasonable  cer- 
tainty is  required,  which  is  often  very  important,  as  it  is 
often  very  difficult  to  prove  with  the  utmost  certainty 
3ie  nature  and  exact  extent  of  a  loss  through  fraud.  It 
is  the  duty  of  the  trial  court  to  instruct  the  jury  to  con- 
sider the  present  loss  of  the  plaintiff  by  reason  of  the  fact 
that  circumstances  are  not  as  stated  by  the  defendant  and 
also  what  the  plaintiff  is  reasonably  certain  to  lose  in  the 
future  as  a  result  of  the  fact  that  the  representations  are 
not  true.^^ 

228.  Exemplary  Damages  have  been  held  recoverable 
in  cases  where  the  deceiver  acted  in  an  extraordinarily 

7 — "The  damages  in  such  cases  it  to  the  jury  to  find  what  amonnt 

are  to  be  found  by  a  jury,  and  of  will   make   good  her  loss,  present 

necessity  are  somewhat  speculative  and  prospective." — Beach  v.  Beach, 

in    character.     *     *     *     The    trial  (1913)  160  la.  346,  141  N.  W.  921, 

court    should,    in    its    instructions  46  L.  E.  A.  (N.  S.)  98,  Ann.  Cas. 

upon    this    subject,    indicate    what  1915  D  216. 

might  be  considered   as  a  present  8 — Briggs   v.   Brushaber,    (1880) 

loss  to  the  plaintiff  by  reason  of  43  Mich.  330,  5  N.  W.  383,  38  Am. 

the  fact  that  her  husband  did  not  Eep.  187. 

o\vn  the  land,  and  such  as  the  evi-  9 — Smith    v.   BoUes,    (1889)    132 

dence    shows    she    was    reasonably  IT.  S,  125,  33  L.  ed.  279,  10  Sup.  Ct. 

certain   to  lose  in  the  future,  de-  39. 

pending    somewhat    upon    her    ex-  10 — Findlater  v.  Borland,  (1908) 

pectancy  of  life  and  the  expectancy  152  Mich.  301,  116  N.  W.  410. 

of  life  of  the  husband,  and  leave  11 — ^Beach  v.  Beach,  (1913)   160 


m  LAW  OF  DAMAGES 

flagrant  manner,  violating  a  relation  of  trust  and  confi- 
dence or  perpetrating  a  fraud  so  gross  as  to  indicate 
malice.^  2 

CASE  ILLUSTRATIONS 

1.  Defendant  knowingly  sold  a  vicious  mare  to  plaintiff,  falsely 
representing  that  she  was  perfectly  gentle  and  kind.  In  an 
action  for  deceit,  plaintiff  is  entitled  to  the  difference  between 
the  mare  as  recommended  and  her  actual  value,  plus  special 
damages  for  such  injuries  as  plaintiff  suffered  as  natural  and 
probable  consequences  of  the  deceit,  including  personal  injuries 
to  plaintiff  and  the  breaking  of  his  buggy,  caused  by  the  running 
and  kicking  of  the  mare.^^ 

2.  Plaintiff  purchased  of  defendant  a  ship  twenty-eight  years 
old,  which  defendant  fraudulently  represented  to  be  only  eight- 
een years  old.  Before  he  knew  that  the  representation  was 
false,  plaintiff  sent  the  ship  to  sea.  She  was  condemned  in  a 
foreign  port.  Held,  that  "the  jury  were  limited  to  the  actual 
damages  to  the  purchaser,  caused  by  the  false  representation,  not 
exceeding  the  value  of  the  vessel,  and  occasioned  by  sending 
her  to  sea  before  he  knew  of  the  falsity  of  the  representation."  ^* 

3.  Defendant  induced  plaintiff  to  marry  X,  representing  that 
X  was  a  virtuous  girl,  when  in  fact  she  was  then  pregnant  by 
the  defendant  himself.  Held,  that  an  action  can  be  maintained 
on  the  ground  of  loss  of  consortmm,  and  that  exemplary  damages 
may  be  assessed.^^ 

la.  346,  141  N.  W.  921,  46  L.  E.  A.  13— Sharon  v.  Mosher,  (1854)  17 

(N.  S.)  98,  Ann.  Cas.  1915  D  216.  Barb.  (N.  Y.)  518. 

12— Kujek    V.    Goldman,    (1896)  14— Tuckwell  v.  Lambert,  (1849) 

150  N.  Y.  176,  44  N.  E.  773,  34  L.  5  Cush.  (Mass.)  23. 

R.   A.    156,  55   Am.   St.   Eep.   670;  15— Kujek    v.    Goldman,    (1896) 

Peckham     Iron     Co.     v.     Harper,  150  N.  Y.  176,  44  N.  E.  773,  34  L. 

(1884)  41  0.  St.  100.  R.  A.  156,  55  Am.  St.  Eep.  670. 


CHAPTER  XLIX 

Seduction 

229.  In  General. — In  earlier  times,  when  the  popular 
view  of  the  domestic  relations  was  much  less  refined  than 
today,  when  fornication  w^as  considered  a  trivial  offense 
or  no  offense  at  all,  when  the  position  of  woman  in  the 
social  order  was  exceedingly  low,  the  right  to  the  menial 
services  of  a  daughter  loomed  so  large  as  actually  to  take 
a  more  important  place  than  a  right  which  is  today  con- 
sidered a  thousand  times  more  important, — the  right  to 
have  one  ^s  daughter  remain  pure  and  inviolate ;  so  that 
the  courts,  unquestionably  influenced,  as  always,  by  the 
type  of  civilization  in  which  they  found  themselves,  early 
determined  that  a  father  could  not  maintain  an  action  for 
the  seduction  of  his  daughter,  unless  he  could  prove  loss 
of  services.^  Such  a  doctrine  seems  absurd  today,  when 
many  actions  are  permitted  to  be  maintained  for  other 
wrongs  without  any  proof  of  pecuniary  loss,  as  in  some 
of  the  actions  for  failure  to  transmit  telegrams,  some  of 
the  actions  for  false  imprisonment,  some  of  those  for  as- 
sault, and  manj"  others;  but  the  doctrine  early  became 
settled,  and,  while  not  carried  to  its  extreme  and  logical 
conclusion  today,  has  had  its  effect  upon  the  development 
of  the  law  on  the  subject.  In  order  to  mitigate  the  effect 
of  adhering  to  the  rule  that  the  father  must  prove  loss  of 
services  as  a  prerequisite  to  his  right  of  action,  some 
courts  have  held  that  it  is  sufficient  if  he  prove  his  mere 
right  to  claim  the  services,^  while  others  have  simply 

1— Irwin  V.  Dearman,   (1809)    11  2— He\\att    v.    Prime,    (1839)    21 

East  23,  103  Eng.  Eepr.  912;   Og-  Wend.  (N.  Y.)  79, 
born   V.   Francis,    (1882)    44  N.  J. 
Law  441,  43  Am.  Rep.  394. 

393 


394  LAW  OF  DAMAGES 

seized  upon  trivial  and  slight  services  as  an  excuse  for 
doing  justice  to  the  father  by  allowing  him  to  maintain 
the  action.^  Still  other  cases  treat  the  requirement  of 
proof  of  loss  of  services  as  merely  a  fiction  and  go  prac- 
tically upon  the  ground  that  no  loss  of  services  at  all  is 
necessary  to  the  maintenance  of  the  action.*  The  tendency 
of  most  courts  is  to  admit  the  technical  grounding  of  the 
action  in  loss  of  service,  but  to  regard  the  proof  of  loss 
of  service  as  being  a  mere  beginning  and  to  allow  the 
assessment  of  damages  for  other  and  often  more  im- 
portant elements,  such  as  disgrace  and  mental  suffering, 
and  to  allow  also  the  assessment  of  exemplary  damages. 
The  damages,  where  no  special  damages  are  laid,  are 
mainly  for  wounded  feelings  of  the  plaintiff.^  The 
amount  of  damages  assessed  may  be  many  times  the  value 
of  the  services  lost.^  The  fact  that  the  plaintiff  and  his 
seduced  daughter  have  had  no  contract  between  them  as 
to  services,  does  not  prevent  the  plaintiff  from  maintain- 
ing his  action,"^  nor  does  the  fact  that  his  daughter  is  of 

3 — Bennett  v.  Alcott,  (1787)  2  T,  built;  the  actual  damage  which  ho 

R.  166,  100  Eng.  Eepr.  90.  has  sustained,  in  many,  if  not  in 

4 — Martin  v.  Payne,  (1812)  9  most  cases,  exists  only  in  the  hu- 
Johns.  (N.  Y.)  387,  6  Am.  Dee.  288.  manity  of  the  law,  which  seeks  to 
In  Clark  v.  Fitch,  (1829)  2  Wend.  vindicate  his  ooitraged  feelings. 
(N.  Y.)  459,  the  plaintiff  was  al-  He  comes  into  the  court  as  a  mas- 
lowed  to  recover,  althorugh  he  ter,  he  goes  before  the  jury  as  a 
showed  no  actual  loss,  except  for  father." — Briggs  v.  Evans,  (1844) 
expenses  of  the  lying-in,  which  are  27  N.  Car.  16.  See  also  Kendrick 
never,  of  themselves,  considered  as  v.  McCrary,  (1852)  11  Ga.  603.  In 
a  forundation  for  such  a  suit.  See  sustaining  the  giving  of  damages 
also  Stoudt  v.  Shepherd,  (1889)  73  in  excess  of  loss  of  services  and 
Mich.  588,  41  N.  W.  696.  expenses.  Lord  Ellenborough  says, 

5— Noice  v.  Brown,  (1877)  39  N.  in   Irwin    v.    Dearman,    (1809)    11 

J.  Law  569.  East     23,     103     Eng.     Eepr.     912: 

G — •"AH  the  authorities  shew  "However  difficult  it  may  be  to 
that  the  relation  of  master  and  reconcile  to  principle  the  giving  of 
servant,  between  the  parent  and  greater  damages  on  the  other 
child,  is  but  a  figment  of  the  law,  ground,  the  practice  is  become  in- 
to open  to  him  the  door  for  the  veterate,  and  cannot  norw  be 
redress  of  his  injuries.  It  is  the  shaken." 
substratum  on  which  the  action  is  7 — "In  cases  of  this  sort,  it  is 


SEDUCTION  395 

age  affect  the  case,  if  she  is,  at  the  time  of  the  seduction, 
living  as  a  member  of  the  family  of  the  plaintiff.^ 

The  fact  that  plauitiff's  daughter  may  bring  another 
action  against  the  defendant  for  breach  of  promise  of 
marriage  is  no  objection  to  the  maintenance  of  the  action 
or  to  the  introduction  of  evidence  of  the  promise  of  mar- 
riage.^ 

230.  Elements  of  Compensation. — The  plaintiff  can 
recover  for  the  follo^vdng  elements  of  damage:  loss  of 
service  caused  by  the  seduction;  medical  and  other  ex- 
penditures incurred  in  connection  with  the  lying-in,  if 
pregnancy  results  from  the  seduction ;  dishonor  and  dis- 
grace to  himself  and  his  family;  and  mental  suffering.^ ° 
Under  the  common  law  rule  that  no  action  can  be  main- 
tained for  seduction  unless  loss  of  service  is  shown,  it  is 
clear  that  there  can  be  no  recovery  for  a  seduction  fol- 
lowed by  no  pregnancy  or  illness  and  not  resulting  in  any 

not  necessary  to  prove  an  actual  seductiooi,  it  is  well  settled   that 

contract   between    the   father   and  no   proof   of  service   is   necessary 

the  daughter,  in  order  to  maintain  beyond  that  implied  from  the  fact 

the  action.     Before   the   child   at-  of    the    daughter's    living    in    her 

tains   the   age   of   twenty-one,   the  father's  house  as  a  member  of  his 

law  gives  the  father  dominion  over  family,  which,  where  the  daughter 

her;   and  after,  the  law  presumes  is  of  age,  is  only  a  service  at  will. " 

the  contract,  when  the  daughter  is  — Noice  v.  Brown,  (1877)  39  N.  J. 

so  situated  as  to  render  service  to  Law  569. 

the  father,  or  is  under  his  control;  8 — Lipe  v.  Eisenlerd,   (1865)    32 

and  this  it  does  for  the  wisest  and  N.  Y.  229. 

most    benevolent    of    purposes,    to  9 — "If  A  B  brings  another  ac- 

preserve    his    domestic    peace,    by  tion    against     defendant     for    the 

guarding     from     the     spoiler     the  breach  of  promise  of  marriage,  so 

purity  and  innocence  of  his  child."  much  the  better;   he   ooaght  to  be 

— Lumpkin,  J.,  in  Kendrick  v.  Mc-  punished  twice.     A  B  being  of  the 

Crary,  supra,  citing:  Bennett  v.  Al-  age  of  30,  is  nothing  to   mitigate 

cott,  (1787)   2  T.  E.  166,  100  Eng.  damages,  or  lessen  the  defendant's 

Eepr.    90;    Nickleson    v.    Stryker,  fault.  "—Tullidge  v.  Wade,  (1769) 

(1813)    10   Johns.    (N.   Y.)    115,   6  3  Wils.  18. 

Am.    Dee.    318;    Moran   v.    Dawes,  10 — Cook  v.  Bartlett,  (1901)  179 

(1825)    4   Cow.    (N.  Y.)    412;    and  Mass.  576,  61  N.  E.  266;   Coon  v. 

other  cases.  Moffitt,  (1809)  3  N.  J.  Law  583,  4 

"In   the  case  of  an  action  for  Am.  Dec.  392. 


396  LAW  OF  DAMAGES 

loss  of  service ;  and,  in  such  a  case,  illness  resulting  from 
mere  worry  of  the  seduced  at  the  publicity  given  her  guilt, 
is  not  a  proximate  result  of  the  seduction." 

The  cost  of  the  support  of  an  illegitimate  child  result- 
ing from  the  seduction,  is  not  a  recoverable  element  of 
'damage  in  an  action  for  seduction,  constituting,  as  it  does, 
a  separate  and  distinct  matter,^^  which  is  usually  made 
the  subject  of  a  separate  statutory  action  in  favor  of  the 
Seduced. 

231.  JUitigation. — Circumstances  tending  to  minimize 
the  loss  occasioned  by  the  wrong,  are  proper  to  be  shown 
in  mitigation  of  damages,  here  as  elsewhere.  Probably 
the  most  frequently  pleaded  fact  in  mitigation  is  the  lack 
of  chastity  of  the  woman  seduced,  existing  prior  to  the 
seduction.  If  she  was  unchaste,  or  was  indiscreet  in  her 
conversation  and  conduct  with  men,  or  had  a  reputation 
for  unchastity,  it  is  reasonable  to  infer  that  the  loss  occa- 
sioned is  not  so  great  as  it  would  have  been  if  she  had 
been  of  chaste  and  exemplary  character  and  reputation 
prior  to  the  seduction.^^  But  unchastity  subsequent  to 
the  seduction  cannot  be  shown  in  mitigation  of  damages.** 
Not  only  does  subsequent  unchastity  fail  to  indicate  any 
lessening  of  the  damage ;  but  it  frequently  happens  that 
the  seduced  becomes  unchaste  largely  if  not  entirely  be- 
cause of  the  seduction,  merely  going  along  the  downward 
path  on  which  the  defendant  has  started  her,  so  that  to 
permit  him  to  show  her  subsequent  unchastity  in  mitiga- 
tion would  be  to  add  insult  to  injury.  A  previous  recov- 
ery by  the  seduced  daughter,  in  her  own  name,  does  not 
mitigate  damages,  her  right,  where  she  has  any  right, 
being  independent  of  that  of  her  father  and  being  the 

11— Knight  V.  Wilcox,  (1856)  14  13— Stewart  v.  Smith,  (1896)  92 

N.  T.  413.  Wis.  76,  65  N.  W.  736. 

12— Sellars  v.  Kinder,   (1858)    1  14— Stoudt   v.   Shepherd,    (1889) 

Head  (Tenn.)   134.  73  Mich.  588,  41  N.  W.  696. 


SEDUCTION  397 

basis  of  a  distinct  and  separate  action.^^  A  subsequent 
marriage  of  the  seduced  with  the  defendant  may  be  shown 
in  mitigation  of  damages.^®  It  is  held  that  the  youthful- 
ness  of  the  defendant  may  or  may  not  mitigate  damages, 
**  according  to  the  other  circumstances  bearing  on  his 
character  and  surroundings."  ^'^ 

232.  Aggravation. — Circumstances  attending  the  se- 
duction are  sometimes  important  in  aggravation  of  dam- 
ages, such  as  the  fact  that  the  defendant,  subsequently 
to  the  seduction,  promised  to  marry  the  seduced  and 
broke  the  promise.^^  An  attempt  of  the  defendant  to  per- 
form an  abortion  on  the  seduced  for  the  purpose  of  con- 
cealing the  seduction,  may  be  shown,  where  pleaded.^ ^ 

233.  Wealth  of  Plaintiff  and  Defendant.— Evidence  of 
the  wealth  and  social  situation  of  the  plaintiff  is  admis- 
sible, in  order  to  show  the  nature  and  extent  of  his  loss.*" 
As  the  assessment  of  exemplary  damages  is  proper,  evi- 
dence is  usually  held  admissible  to  show  the  wealth  or 
poverty  of  the  defendant,  in  order  that  the  jury  may  know 
how  large  a  verdict  is  necessary  in  order  really  to  punish 
him.21 

234.  Discretion  of  the  Jury. — The  heinous  nature  of  the 
offense  and  the  fact  that  most,  and  usually  the  chief,  ele- 
ments of  damage  are  non-pecuniary  and  difficult  to  esti- 
mate mth  accuracy,  tend  to  broaden  the  discretionary 
power  of  the  jury  in  cases  of  this  kind.  Usually,  and 
probably  always,  it  is  proper  to  punish  seduction  with 
exemplary  damages,  and  this  fact  tends  to  add  to  the 

15— Pruitt  V.  Cox,  (1863)  21  Ind.  18— Milliken  v.  Long,  (1898)  188 

15.  Pa.  411,  41  Atl.  540, 

16— Eichar  v.  Kistler,  (1850)  14  19— White    v.    Murtland,    (1874) 

Pa.  St.  282,  53  Am.  Dec.  551.  71  111.  250,  22  Am.  Rep.  100. 

17— Stoudt   V.   Shepherd,    (1889)  20— White  v.  Murtland,  supra. 

73  Mich.  588,  41  N.  W.  696.  21— White  v.  Murtland,  supra. 


398  LAW  OP  DMIAGES 

comparative  freedom  of  the  jury's  discretion  from  con- 
trol of  the  court.  While  it  cannot  be  said  that  the  jury 
has  absolutely  unlimited  discretion  as  to  the  amount  of 
its  verdict  in  such  cases,  it  can  probably  be  said  with 
safety  that  there  is  no  field  in  which  the  amount  of  a 
verdict  is  less  likely  to  be  interfered  with  by  the  court 
than  here.22 

CASE  ILLUSTRATIONS 

L  Plaintiff's  daughter,  twenty-three  years  old,  hired  herself 
out  as  a  servant,  and  went  to  live  with  her  master.  During  her 
service,  she  was  seduced  and  rendered  pregnant  by  defendant. 
Plaintiff  received  her  at  home,  and  maintained  her  in  her  lying- 
in,  at  his  own  expense.  Held,  that  the  action  cannot  be  main- 
tained, because  no  loss  of  service  is  shown.23 

2.  Plaintiff's  unmarried  daughter,  thirty  years  old,  was  se- 
duced by  defendant.  The  only  service  shown  was  milking  cows. 
Held,  that  plaintiff  can  recover.^* 

3.  Plaintiff's  minor  daughter,  with  plaintiff's  consent,  left 
her  father's  house  without  any  intention  of  returning,  and  with 
her  father's  license  that  she  might  appropriate  her  time  and 
services  to  her  own  use.  Later  she  was  seduced  by  defendant. 
Held,  that  plaintiff  may  maintain  the  action.  "If  it  be  proper 
to  substitute  a  constructive  for  an  actual  service,  to  enable  the 
wealthy  parent,  whose  daughter  resides  with  him,  to  maintain 
this  action  when  the  honor  and  happiness  of  his  family  are  as- 
sailed by  the  seducer,  it  is  no  less  proper  that  the  same  substitu- 
tion should  be  allowed  in  favor  of  the  less  fortunate  father,  whose 
circumstances  require  the  absence  of  his  child  from  the  parental 

22 — Marshall   v.   Taylor,    (1893)  done  right  in  giving  liberal  dam- 

98  Calif.  55,  32  Pae.  867,  35  Am.  ages."— Lord    Chief    Justice    Wil- 

St.  Eep.  144,    "Courts  are  not  dis-  mot,  in  Tullidge  v.  Wade,   (1769) 

posed  to  make  smooth  the  ways  of  3  Wils.  18.     See  also  Stevenson  v. 

the  seducer."     Here  a  verdict  for  Belknap,   (1858)   6  la,  97,  71  Am. 

$25,000  was  upheld.  Dec.  392. 

"Actions  of  this  sort  are  brought  23 — Postlethwaite       v.       Parks, 

for  example's  sake;   and  although  (1766)  3  Burr.  1878,  97  Eng.  Repr. 

the  plaintiff's  loss  in  this  case  may  1147. 

not  really  amount  to  the  value  of  24 — 'Bennett  v.  Aleott,   (1787)   2 

twenty  shillings,  yet  the  jury  have  T.  R.  166,  100  Eng.  Repr,  90. 


SEDUCTION  399 

roof,  in  order  to  enable  him  by  the  same  means  to  protect  him- 
self and  family  from  the  same  misfortune. ' '  ^^ 

4.  Defendant,  a  man  of  wealth  and  years,  seduced  and  impreg- 
nated plaintiff,  who  was  less  than  seventeen  years  old.  Damages 
in  the  sum  of  $25,000  are  not  excessive.^^ 

25 — Boyd    v.    Byrd,     (1846)     8  action  herself,  under  a  state  stat- 

Blackf.  (Ind.)  113,  44  Am.  Dec.  740.  ute.     The  measure  of  damages,  in 

26 — Marshall    v.    Taylor,    (1893)  such    a    case,    is   naturally    larger, 

98  Calif.  55,  32  Pac.  867,  35  Am.  other  things  being  equal,  than  it 

St.  Rep.  144.     Contrary  to  the  rule  would  be  if  a  parent  were  bringing 

of   the   common   law,   the  seduced  the  action, 
was  here  allowed  to  maintain  an 


CHAPTER  L 

Criminal  Conversation 

235.  In  General. — Adultery,  when  considered  as  a  tort 
for  which  the  wronged  husband  may  recover,  is  known 
as  criminal  conversation.  The  gist  of  the  action  for  this 
wrong  is  interference  with  the  husband's  exclusive  right 
of  consortium.  The  action  is  not  founded  on  loss  of  serv- 
ices, as  is  an  action  for  seduction,  and  it  is  not  essential 
to  the  maintenance  of  the  action  that  pecuniary  loss  of 
any  kind  be  shown.  Even  where  there  is  no  resulting  ex- 
pense and  no  loss  of  services,  substantial  damages  may 
be  recovered  for  the  commission  of  adultery  by  the  de- 
fendant with  the  plaintiff's  wife.^ 

If  the  plaintiff  has  connived  at  the  particular  acts  of 
adultery  alleged  or  has  suffered  his  wife  to  live  as  a 
prostitute,  he  cannot  recover,  as  it  is  damnum  absque  in- 
juria.^ The  old  maxim,  '^volenti  non  fit  injuria,"  fits 
such  a  case.  But  the  fact  that  the  plaintiff  is  living  away 
from  his  wife  and  is  even  leading  a  dissolute  life,  does  not 
bar  his  action.^  Even  the  fact  that  the  wife  has  since 
obtained  a  divorce  from  the  plaintiff  is  no  defense.* 

It  is  not  essential  to  a  plaintiff's  right  of  action  that 
he  prove  alienation  of  his  wife's  affections.^ 

1— Sikcs   V.    Tippins,    (1890)    85  2— Cook  v.  Wood,  (1860)  30  Ga. 

Ga.   231,  11   S.   E.   662;   Yundt   v.  891,  76  Am.  Dec.  677. 

Hartrunft,  (1866)   41  HI.  9;   Shan-  3— Browning  v,  Jones,  (1894)  52 

non  V.  Swanson,  (1904)  208  111.  52,  III.  App.  597. 

69    N.    E.    869;    Adams    v.    Main,  4— Michael  v.  Dunkle,  (1882)  84 

(1892)   3  Ind.  App.  232,  29  N.  E.  Ind.  544,  43  Am.  Rep.  100. 

792;   Bigaouette  v.  Paulet,   (1883)  5— Stark  v.  Johnson,    (1908)    43 

134  Mass.   123,  45  Am.   Rep.   307;  Colo.  243,  95  Pac.  930,  16  L.  B.  A. 

Rinehart   v.   Bills,    (1884)    82   Mo.  (N.  S.)  674. 
534,  52  Am.  Eep.  38'5. 

400 


CRIMINAL  CONVERSATION  401 

The  action  cannot  be  maintained  by  a  wife  against  an- 
other for  carnally  knowing  her  husband.® 

Evidence  of  the  financial  conditions  of  plaintiff  and 
defendant  is  admissible  here  for  the  same  reasons  as  in 
seduction^ 

236.  Elements  of  Compensation. — Compensatory  dam- 
ages for  criminal  conversation  include  compensation  for 
the  following  elements:  loss  of  consortium  or  conjugal 
association,  loss  of  the  wife 's  affections,  mental  suffering 
of  the  plaintiff,  disgrace  and  humiliation,  reasonable  ex- 
penditures which  have  resulted  proximately  from  the 
defendant's  wrong,  and  the  net  pecuniary  value  of  the 
services  of  the  wife,  which  is  the  gross  value  of  such  serv- 
ices, minus  the  cost  of  the  support  which  the  husband  is 
under  a  duty  to  give  the  wife.^  The  action  is  grounded 
in  disturbance  of  the  family  relations  and  loss  of  con- 
sortium; but  loss  of  services  or  diminution  in  their  value 
may  be  an  element  of  damage.^  Some  authorities,  as  in 
breach  of  promise,  add  ** injury  to  the  affections"  of  the 
plaintiff.^*^  Although  loss  of  affections  is  an  element  of 
damage  to  be  compensated  for,  it  is  not  the  gist  of  the 
action.  It  has  been  held  that  it  is  only  a  matter  of  ag- 
gravation.^^ 

6 — "A  wife's  infidelity  may  im-  731.     The  right  of  the  plaintiff  to 

pose  upon  her  husband  the  support  recover  for  mental  suffering  is  well 

of  another  man's  child,  and,  what  settled.     Stark  v.  Johnson,   (1908) 

is   still  worse,  it   may  throw   sus-  43  Colo.  243,  95  Pac.  930,  16  L.  R. 

picion  upon  the  legitimacy  of  his  A.   (N.  S.)  674,  15  Ann.  Cas.  868; 

own    children.      A    husband's    infi-  Browning  v.  Jones,    (1893)    52  111. 

delity    can   inflict    no    such    conse-  App.  597;  Smith  v.  Meyers,  (1897) 

quences   upon   his   wife." — Doe   v.  52  Neb.  70,  71  N.  W.  1006;  Cross 

Eoe,  (1890)  82  Me  503,  20  Atl.  83,  v.  Grant,   (1883)   62  N.  H.  675,  13 

8  L.  R.  A.  833,  17  Am.  St.  Rep.  499.  Am.  St.  Rep.  607. 

But  the  wife  may  maintain  an  ac-  9 — Adams  v.  Main,  (1892)  3  Ind. 

tion  against  another  woman  for  the  App.  232,  29  N.  E.  792. 

alienation  of  her  husband's  affec-  10 — See   Willis    on    Damages,   p. 

tions.     See  next  chapter.  182.      See   also   treatment    of   this 

7 — See  §  233.  element  in  breach  of  promise,  §  163. 

8 — Prcttyman      v.      Williamaon,  11 — Evans   v.   O'Connor,    (1899) 
(1898)    1  Pen.    (Del.)    224,  39  Atl. 
Bauer  Dam. — 26 


402  LAW  OF  DAMAGES 

237.  Mitigation. — On  the  general  principle  that  evi- 
dence of  facts  showing  the  amount  of  plaintiif 's  loss  is 
admissible,  the  defendant  has  a  right  to  introduce  evi- 
dence tending  to  show  that  such  loss  is  not  great.  So,  if 
the  consortium  in  question  has  already  been  rendered  of 
less  value  by  reason  of  criminal  conversation  with  third 
parties,  accomplished  previously  to  the  wrong  of  the  de- 
fendant, or  if  the  wife  has  been  unchaste  before  defend- 
ant's wrongful  act,  it  is  apparent  that  plaintiff's  loss  is 
not  so  great  as  it  would  otherwise  have  been,  and  there- 
fore evidence  of  such  previous  criminal  conversation  with 
others  or  unchastity,  is  admissible  in  mitigation  of  dam- 
ages.^^  The  unchaste  conduct  of  the  wife  with  third  per- 
sons after  the  wrongful  act  of  defendant,  does  not  miti- 
gate damages,  but  may  enhance  them.^^  Where  plain- 
tiff's wife  was  not  seduced  by  the  arts  of  defendant,  but 
was  really  active  herself  in  bringing  about  the  illicit  rela- 
tions complained  of,  this  fact  may  be  shown  in  mitigation 
of  damages.^* 

The  fact  that  the  defendant  did  not  know  that  the  plain- 
tiff's wife  was  a  married  woman,  may  be  considered  in 
mitigation  of  damages,^^  but  it  would  seem  that  this 
should  mitigate  only  exemplary,  and  not  compensatory, 
damages. 

The  plaintiff's  laxity  in  caring  for  his  wife's  chastity 
may  be  shown  in  mitigation,  where  his  conduct  does  not 
amount  to  a  consent  so  as  to  bar  the  action.*^ 

Condonation  of  the  wrong  by  the  husband  may  be  con- 
sidered in  mitigation  of  damages.  Usually,  loss  of  so- 
ciety, fellowship  and  assistance  of  the  wife  is  charged.    If 

174  Mass.  287,  54  N.  E.  557,  75  Am.  (1906)   146  Mich.  7,  109  N.  W.  23, 

St.  Rep.  316.                          ,  10  Ann.  Cas.  60,  117  Am.  St.  Rep. 

12— Harrison  v.  Price,  (1864)  22  615. 

Ind.  165.  15— Lord  v.  Lord,  [1900]  P.  297, 

13— Smith        V.        Hockenberry,  69  L.  J.  P.  54. 

(1904)    138  Mich.  129,  101  N.  W.  16— Bunnell  v.  Greathead,  (1867) 

207.  49  Barb.  (N.  Y.)  106. 

14 — Smith        V.        Hockenberry, 


CRIMINAL  CONVERSATION  403 

condonation  has  rendered  this  loss  but  temporary,  the 
damage  is  less.^'^ 

The  jury  may  consider  in  mitigation  the  fact  that  the 
plaintiff  and  his  mfe  sustained  unhappy  relations  with 
each  other  previously  to  the  wrong  in  question,  or  that 
the  plaintiff's  wife  was  wanting  in  affection  for  the  plain- 
tiff.^^ In  an  action  by  the  husband,  it  may  be  shown  in 
mitigation  of  damages  that  the  plaintiff  deserted  his  wife 
before  the  commission  of  the  wrong.^^  Of  all  the  facts 
that  can  be  sho\vn  in  mitigation  of  damages,  probably 
none  more  clearly  and  certainly  mitigates  than  does  this. 
The  fact  of  desertion  indicates  that  the  husband  placed  a 
very  low  value  upon  the  marriage,  and  furthermore  he 
himself  made  the  marriage  less  valuable  than  ever,  aban- 
doning his  principal  right  thereunder — the  right  to  the 
society  of  his  wife.  It  is  also  held  that  the  fact  that  the 
plaintiff  has,  after  the  commission  of  the  wrong,  divorced 
his  wife,  may  be  considered  in  mitigation  of  damages.^" 
Failure  of  the  plaintiff  to  support  his  wife  also  mitigates 
damages.^^  So  does  the  fact  that  he  is  living  apart  from 
her.2a 

238.  Similar  Wrongs  by  Others  and  Actions  Against 
Them  Not  a  Bar. — Although  the  fact  of  previous  criminal 
conversation  of  third  persons  with  plaintiff's  spouse  is 
admissible  in  mitigation  of  damages,  it  is  not  a  bar  to  the 
action ;  nor  is  the  fact  that  a  judgment  for  such  wrong  by 
third  persons  has  been  had  or  a  settlement  made.  The 
wrongful  acts  of  defendant  and  third  persons  are  sepa- 

17— Morning  v.  Long,  (1899)  109  v.  Grant,  (1883)   62  N.  H.  675,  13 

la.  288,  80  N.  W.  390;  Ball  v.  Mar-  Am.  St.  Eep.  607. 

quis,  (1904)  122  la.  665,  98  N.  W.  19— Browning    v.    Jones,    (1893) 

496;  Smith  v.  Hockenberry,  (1906)  52  HI.  App.  597. 

146  Mich.  7,  109  N.  W.  23,  10  Ann.  20— Prettyman     v.     Williamson, 

Cas.  60.  (1898)    1  Pen.   (Del.)    224,  39  Atl. 

18— Palmer   v.    Crook,    (1856)    7  731. 

Gray  (Mass.)  418;  Hadley  v.  Hey-  21— Id. 

wood,  (1876)  121  Mass.  236;  Cross  22— Id. 


404  LAW  OF  DAMAGE^ 

rate  and  distinct  torts,  and  no  right  of  action  accrues 
against  the  separate  tort  feasors  jointly.  ''There  being 
no  joint  liability,  the  doctrine  that  satisfaction  by  one 
joint  tort  feasor  bars  recovery  against  all  others  of  such 
tort  feasors  has  no  application. ' '  ^^ 

239.  Discretion  of  the  Jury. — ^In  cases  of  criminal  con- 
versation, as  in  all  others  wherein  the  damage  is  largely 
non-pecuniary,  the  jury  may  exercise  a  very  broad  dis- 
cretion as  to  the  amount  of  damages,  and  there  seems  to 
be  great  reluctance  on  the  part  of  any  court,  in  these 
cases,  to  interfere  with  verdicts  for  large  sums.^*  Be- 
sides the  non-pecuniary  nature  of  a  large  portion  of  the 
loss  occasioned,  the  further  fact  that  exemplary  damages 
are  usually,  and  probably  always,  proper  in  cases  of  crim- 
inal conversation,  in  jurisdictions  wherein  such  damages 
are  allowed  at  all,  tends  to  make  courts  pause  in  setting 
aside  large  verdicts  in  cases  of  this  heinous  offense.^^  In 
such  cases,  damages  are  not  easily  calculated  in  dollars 
and  cents;  each  case  must  depend  upon  its  own  facts, 
which  it  is  within  the  province  of  the  jury  to  find ;  each 
case  must  depend  upon  its  own  circumstances  of  aggrava- 
tion; each  case  is  affected  by  the  social  position  of  the 
parties  and  their  pecuniary  situation;  so  that  it  is  ex- 
ceedingly difficult  for  a  court  to  say,  in  most  instances, 
that  the  jury  has  placed  the  damages  at  an  excessive 
amount. 

CASE  ILLUSTRATIONS 

1.  A  sues  B  for  criminal  conversation.  B  pleads  that  hia 
brother,  C,  also  had  intercourse  with  plaintiff's  wife,  for  which 

23 — Shannon  v.  Swanson,  (1904)  797,  in  which  it  was  held  that  a 

208  111.  52,  69  N.  E.  869.  verdict  for  $1,000  was  so  small  as 

24 — Wales   v.   Miner,    (1883)    89  to    indicate    no   passion    or   preju- 

Ind.     118;     Billings     v.     Albright,  dice;    Speck    v.    Gray,    (1896)    14 

(1901)   73  N.  T.  Supp.  22,  66  App.  Wash.  589,  45  Pac.  143. 

Div.     239;     Vollmer     v.     Stregge,  25 — Prettyman     v.     Williamson, 

(1914)   27  N.  Dak.  579,  147  N.  W.  (1898)    1   Pen.   (Del.)   224,  39  Atl. 


CRIMINAL  CONVERSATION  405 

a  settlement  was  had  between  plaintiff  and  C,  and  insists  that 
these  facts  bar  the  action.  C's  wrongful  acts,  being  separate 
and  distinct  from  those  of  defendant,  the  fact  of  his  wrong 
and  the  settlement  therefor  do  not  constitute  a  bar  to  an  action 
against  defendant.^^ 

2.  A  sues  B  for  having  criminal  conversation  with  A's  wife. 
Defendant  offers  to  prove  that  plaintiff  treated  his  wife  with  in- 
tolerable severity.  Held,  that  this  fact  is  admissible  in  mitiga- 
tion of  damages,  but  not  in  bar  of  the  action.^'^ 

731;  Matheis  v.  Mazet,  (1894)   164  26— Shannon  v.  Swanson,  (1904) 

Pa.  580,  30  Atl.  434;  Joseph  v.  Nay-  208  111.  52,  69  N.  E.  869. 

loT,    (1917)    257  Pa.   561,   101  Atl.  27^Jenness  v.   Simpson,    (1911) 

846.  84  Vt.  127,  78  Atl.  886. 


CHAPTER  LI 
Enticement  of  Spouse  and  Alienation  of  Affections 

240.  In  General.— Closely  related  to,  and  blending  into, 
the  field  of  criminal  conversation,  is  the  action  for  en- 
ticing away,  or  alienating  the  affections  of,  the  plaintiff's 
spouse.  Sexual  intercourse  between  the  defendant  and 
the  plaintiff's  spouse  is  not,  however,  essential  to  the 
maintenance  of  the  action ;  and  such  a  wrong,  if  made  the 
principal  ground  of  an  action,  really  indicates  an  action 
for  criminal  conversation. 

A  husband  may  maintain  an  action  for  the  enticing 
away,  or  alienation  of  the  affections,  of  his  wife ;  ^  and  a 
wife  may  maintain  a  similar  action  for  an  enticement  or 
alienation  of  her  husband.^ 

241.  Elements  of  Compensation. — A  husband  is  en- 
titled to  the  consortium  and  services  of  his  wife.  Where 
she  is  wrongfully  induced  to  leave  him,  he  is  entitled  to 
compensation  for  the  loss  of  these  elements ;  but  it  must 
always  be  borne  in  mind,  in  assessing  damages,  that  these 
rights  are  burdened  with  the  obligation  to  clothe,  support, 

1— Rinehart   v.   Bills,    (1884)    82  Daywitt,   (Ind.  App.  1917)    114  N. 

Mo.  534,  52  Am.  Rep.  385;   Holtz  E.  694;  Nichols  v.  Nichols,   (1898) 

V.  Dick,  (1884)  42  O.  St.  23,  51  Am.  147  Mo.  387,  48  S.  W.  947;  Hodg- 

Rep.  701.  kinson    v.    Hodgkinson,    (1895)    43 

2— Mehrhoff  v.  Mehrhoff,  (1886)  Neb.  269,  61  N.  W.  577,  27  L.  R.  A. 

26  Fed.  13;  Foot  v.  Card,  (1889)  58  120,  47  Am.  St.  Rep.  759;   Jaynes 

Conn.  1,  18  Atl.  1027,  6  L.  R.  A.  v.  Jaynes,  (1886)  39  Hun   (N.  Y.) 

829,  18  Am,  St.  Rep.  258;  Haynes  40;  Bennett  v.  Bennett,  (1889)  116 

V.  Nowlin,  (1891)  129  Tnd.  581,  29  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A. 

N.  E.  389;  Price  v.  Price,  (1894)  91  553;  Westlake  v.  Westlake,  (1878) 

la.  693,  60  N.  W.  202;  Daywitt  v.  34  O.  St.  621.     Contra:   Duffies  v. 

406 


ALIENATION  OF  AFFECTIONS  407 

cherish,  and  care  for  her  in  sickness  and  in  health.^ 

Where  a  wife  brings  her  action,  one  of  the  elements  for 
which  she  may  recover  is  loss  of  support  and  another  is 
loss  of  society.^ 

Mental  suffering  is  a  recoverable  element  of  damage, 
in  most  and  probably  all  of  these  cases,  proceeding,  as  it 
does,  both  naturally  and  proximately  from  the  wrong.^ 

Where  defendants  alienated  the  affections  of  plaintiff's 
husband,  causing  him  to  convey  his  land  to  them  and  to 
abscond,  and  plaintiff,  unable  to  locate  her  husband,  pro- 
cured a  legal  separation,  but  did  not  do  so  because  of  any 
desire  to  live  apart  from  him,  it  was  held  that  plaintiff's 
loss  of  his  society  before  the  decree  of  separation  and  her 
permanent  loss  of  his  society  afterward  could  be  taken 
into  account  in  assessing  damages.® 

In  an  action  for  alienation  of  affections,  damages  can- 
not be  assessed  for  an  assault  and  slights  and  indignities 
inflicted  by  defendants  upon  plaintiff  prior  to  their 
wrongful  act  of  alienating  the  husband's  affections,'^  and 
it  would  seem  that,  even  if  these  wrongs  were  contempo- 
raneous with  that  of  alienating  the  affections,  it  would 
still  be  impossible  to  compensate  for  them  in  this  action. 
They  might,  if  accompanying  the  wrong,  be  considered 
as  circumstances  aggravating  damages,  but  such  wrongs 
as  assaults  constitute  independent  causes  of  action. 

242.  Mitigation. — All  circumstances  tending  to  make 
the  resulting  damage  less  may  be  considered  in  mitigation 
of  damages.  The  fact  of  lack  of  harmony  between  hus- 
band and  wife  makes  the  married  relation  and  the  affec- 
tions of  less  value,  and  so  may  be  shown  in  mitigation  of 

Duffies,   (1890)   76  Wis.  374,  45  N.  5— Long  v.  Booe,  (1894)  10€  Ala. 

W.  522,  8  L.  K.  A.  420,  20  Am.  St.  570,  17  So.  716. 

Kep.  79.  6— WilsOTi  v.  Coulter,   (1898)   51 

3— Eudd  V.  Ecrands,  (1892)  64  Vt.  N.  Y.  Supp.  804,  29  App.  Div.  85. 
432,  25  Atl.  438.  7— Smith    v.    Smith,    (1916)    192 

4— See  cases  cited  supra,  note  2.  Mich.  566,  159  N.  W.  349. 


408  LAW  OF  DAMAGES 

damages.^  If  such  affections  have  never  been  strong,  it 
naturally  follows  that  the  loss  of  the  affections  cannot 
have  been  so  large  an  element  of  damage  to  the  plaintiff 
as  it  would  have  been  if  the  affections  had  been  ardent. 
The  same  is  true  of  previous  adultery  of  plaintiff's 
spouse  with  a  person  other  than  defendant.^  It  is  held 
that  the  bad  character  of  the  plaintiff  may  be  shown  in 
mitigation  of  damages.^  ° 

The  fact  that  a  reconciliation  between  plaintiff  and  his 
wife  has  taken  place  since  the  offense,  is  proper  to  con- 
sider in  mitigation  of  damages.  Such  reconciliation 
makes  the  loss  of  consortium,  temporary,  so  that  the  dam- 
age is  less  than  it  would  be  if  the  loss  were  perm.anent.^  ^ 
The  relation  of  parent,  brother  or  sister,  existing  between 
the  defendant  and  the  plaintiff's  spouse  may  mitigate 
damages.*^ 

243.  Action  Against  Parents,  Brothers  or  Sisters  of 
Alienated  Spouse. — In  these  cases,  there  is  more  of  dif- 
ficulty in  maintaining  an  action  against  the  parents, 
brothers  or  sisters  of  the  alienated  spouse  than  there 
would  be  in  suing  other  persons  guilty  of  the  same  act. 
The  advice  of  a  parent  to  his  child  or  of  a  brother  or 
sister  to  a  brother  or  sister  to  leave  the  husband  or  wife, 
is  held  not  to  be  actionable  unless  malicious,  as  it  is  pre- 
sumed that  a  parent,  brother  or  sister  will  take  such  ac- 
tion only  because  of  his  desire  to  do  that  which  is  best 
for  his  kin.*^    But  this  amounts  only  to  a  presumption, 

8 — Durning  v.   Hastings,    (1897)  a  parent's  action  towards  a  daugh- 

183  Pa.  210,  38  Atl.  627,  ter  is  inspired  by  a  proper  regard 

9 — ^Angell  v.  Reynolds,  (1904)  26  for   the   welfare  and  happiness   of 

R.  I.  160,  58  Atl.  625,  106  Am.  St,  the  daughter,  and  before  a  recovery 

Rep.  707.  can  be  had  in  this  class  of  cases 

10 — ^Bailey  v.  Bailey,   (1895)   94  there  must  be   evidence   suflScient, 

la.  598,  63  N.  W.  341,  not  only  to  overcome  this  presump- 

11 — Rehling  v,  Brainard,  (1914)  tion,  but  to  establish  that  the  par- 

38  Nev.  16,  144  Pac.  167.  ent  acted  maliciously.     If  the  par- 

12 — Ray  v.  Parsons,    (1915)    183  ental     affection     for     a     daughter, 

Ind.  344,  109  N,  E.  202,  manifested   by   the   wish  that   the 

13 — "  There  is  a  presumption  that  daughter  might  be  near  them,  so 


ALIENATION  OF  AFFECTIONS  40d 

and  does  not  bar  the  action  if  there  be  malice.^* 

244.  Exemplary  Damages. — Where  the  defendant's 
conduct  in  bringing  about  the  alienation  has  been  wanton, 
high-handed,  or  malicious,  exemplary  damages  may  be 
assessed.^^ 

245.  Discretion  of  the  Jury. — The  losses  growing  out 
of  enticement  of  a  spouse  or  alienation  of  the  affections, 
include  both  pecuniary  and  non-pecuniary  elements,  and 
both  kinds  of  elements  are  often  difficult  of  measurement 
in  these  cases.  Great  damage  is  often  wrought.  Aggra- 
vating circumstances  often  accompany  the  wrong.  Under 
these  conditions,  it  is  not  surprising  that  very  large  dam- 
ages are  frequently  given,  with  very  little  probability 
that  they  will  be  set  aside.  The  discretion  of  the  jury  is 
very  broad,  although  of  course  not  without  limit.^^ 

CASE  ILLUSTRATIONS 

1.  Plaintiff  brings  action  against  another  woman  for  alienat- 
ing the  affections  of  plaintiff's  husband.  "The  defendant  of- 
fered to  prove,  in  substance,  that  plaintiff's  husband  had  been 
improperly  familiar  with  other  women  than  herself  during  the 
same  period  that  she  was  charged  with  having  maintained  illicit 

that  she   could  be  properly  cared  (1904)    68  Kan.  410,  75  Pac.  492; 

for,  and  have  a  warm  and  comfort-  Hartpence  v.  Rodgers,   (1898)    143 

able   horme  in  which   she   could  be  Ma.   623,  45   S.  W.   650;   White  v. 

properly    nursed    back    to    health,  White,  (1909)  140  Wis.  538,  122  N. 

should    be    held   to    be    actionable,  W.  1051, 

then  parental  affection  counts  for  16 — Weber  v.  Weber,  (1914)  113 
naught,  and  the  tender  solicitude  Ark.  471,  169  S.  W.  318,  Ann.  Cas. 
of  the  mother  for  her  daughter  1916  C  743,  holding  $2,700  not  ex- 
must  be  severed  at  the  daughter's  cessive;  De  Ford  v.  Johnson,  (Mo. 
marriage  altar,  a  condition  that  is  1915)  177  S.  W.  577,  allowing 
inconceivable  either  in  law  or  $7,400;  Phelps  v.  Bergers,  (1913) 
morals."— Eay  v.  Parsons,  (1915)  92  Neb.  851,  139  N.  W.  632,  verdict 
183  Ind.  344,  109  N.  E.  202.  for  $16,666.67  held  excessive;  Phil- 

14 — Luick  v.   Arends,    (1911)    21  lips    v.    Thomas,    (1912)    70    Wash. 

N.  Dak.  614,  132  N.  W.  353.  533,  127  Pac.  97,  verdict  for  $35,000 

15— Waldron  v,  Waldron,   (1890)  reduced  to  $25,000. 
45    Fed.    315;    Nevins    v.    Nevins, 


410  LAW  OF  DAMAGES 

relations  with  him,  and  hence  that  she  was  not  responsible,  in 
any  event,  for  all  the  damages  which  the  plaintiff  had  sustained 
in  the  premises.  *  *  *  However  ungracious,  or  even  odious, 
such  a  defense  may  seem  to  be  from  a  purely  moral  standpoint, 
it  is  doubtless  one  which  a  defendant  may  interpose  in  an  action 
of  this  sort.'' 17 

2.  Plaintiff  sues  defendant  for  alienation  of  her  husband's 
affections.  Recovery  may  be  had  for  loss  of  support,  if  the  value 
of  such  support  is  shown.  Damages  may  be  assessed  also  for 
mental  suffering  and  loss  of  society;  and  the  amount  to  be 
allowed  for  these  latter  elements,  since  they  are  non-pecuniary, 
is  largely  in  the  discretion  of  the  jury,  which,  however,  should 
consider  the  circumstances  of  the  case.^* 

17— Angell   v.    Eeynolds,    (1904)  18— Rice    v.    Rice,     (1895)     104 

26  R.  I.  160,  58  Atl.  625,  106  Am.      Mich.  371,  62  N.  W.  833. 
St.  Rep.  707. 


CHAPTER  LII 

Interference  with  the  Right  of  Privacy 

246.  In  General. — Recent  years  have  seen  the  recog- 
nition, by  some  courts,  of  a  tort  formerly  unknown  or,  at 
any  rate,  unrecognized.  That  tort  is  interference  with 
one's  right  of  privacy,  or,  to  be  more  exact,  one's  right 
not  to  be  brought  before  the  attention  of  the  public  or  to 
be  left  alone.^  Not  all  courts  recognize  the  existence  of 
such  a  right.  Most  of  the  cases  on  the  subject  are  not 
very  satisfactory,  as  they  involve  the  essential  elements 
of  libel,  so  that  there  would  be  a  right  of  action  irrespec- 
tive of  the  existence  of  a  right  of  privacy.  This  field  is 
thus  far  so  little  developed  that  it  is  impossible  to  say 
what  are  all  of  the  methods  in  which  one  may  wrongfully 
interfere  with  this  right,  or  just  what  the  degree  of  inter- 
ference must  be  in  order  to  afford  a  cause  of  action,  or 
just  what  the  elements  of  damage  are.  The  usual  means 
of  bringing  up  the  question  of  the  existence  of  a  right  of 
privacy  is  a  suit  to  enjoin  the  unauthorized  publication  of 

1— Eecognizing  the  right  of  pri-  (1909)  30  E.  I.  13,  73  Atl.  97,  24 

vacy:    Pavesich    v.    New    England  L.  K.  A.   (N.  S.)   991;   Hillman  v. 

Life  Insurance  Co.,  (1905)  122  Ga.  Star  Pub.  Co.,  (1911)  64  Wash.  691, 

190,  50  S.  E.  68,  69  L.  R.  A.  101,  117  Pac,  594,  35  L.  E.  A.   (N.  S.) 

106  Am.  St.  Eep.  104,  2  Am.  &  Eng.  595.    The  rule  stated  in  the  Eober- 

Ann.  Cas.  561;  Foster-Milburn  Oo.  son    Case    has    been    abrogated   in 

V.  Chinn,  (1909)   134  Ky.  424,  120  New    York    by    a    statute,    under 

S.    W.    364,   34   L.   E.   A.    (N.   S.)  which  has  grown  up  a  considerable 

1137;    Edison   v.  Edison   Polyform  body  of  case  law  on  the  question 

Mfg.  Co.,  (1907)   73  N.  J.  Eq.  136,  what   is   included   in   the   right   of 

67  Atl.  392.     Corntra:     Eoberson  v.  privacy  intended   to   be  protected 

Eochester  Folding  Box  Co.,  (1902)  by  the  enactment  and  the  further 

171  N,  Y.  538,  64  N.  E.  442,  59  L.  question  what  constitutes  a  viola- 

E.  A.  478,  89  Am.  St.  Eep.  828  (3  tion  of  it. 
JJ.  dissenting);   Henry  v.  Cherry, 

411 


412  LAW  OF  DAMAGES 

one's  picture  or  an  action  for  damages  for  such  publica- 
tion. Courts  permitting  an  action  for  the  violation  of  the 
right  of  privacy  say  that  proof  of  special  damage  is  un- 
necessary. 

Where  the  right  of  privacy  is  conceded  at  all,  it  seems 
to  exist  in  varying  degree  in  favor  of  different  persons 
who  have  surrendered  none  of  the  right  or  a  small  part  of 
it  or  a  large  part ;  and  so  a  very  important  question  to  be 
settled  at  the  threshold  of  any  case  is  whether  there  has 
been  any  wrongful  invasion  of  privacy  not  surrendered 
by  the  plaintiff.  Men  who  have  entered  public  life  have 
surrendered  much  of  their  right  of  privacy. 

247.  Elements  of  Damag-e. — Probably  all  the  proxi- 
mate damage  in  most  cases  would  be  non-pecuniary  and 
very  much  in  the  discretion  of  the  jury.  The  loss  of 
privacy  itself  seems  to  constitute  an  element  of  damage. 
It  seems  safe  to  say  that  the  other  principal  elements  of 
damage  are:  injury  to  reputation,  if  any;  humiliation; 
and  mental  suffering.^ 

There  seems  to  be  no  reason  why  the  subject  should 
not  be  governed  by  the  usual  rules  of  proximate  cause, 
mitigation,  aggravation,  and  exemplary  damages. 

CASE  ILLUSTRATIONS 

1.  Defendants,  without  plaintiff's  permission,  published  in  a 
life  insurance  advertisement  a  picture  of  plaintiff  by  the  side 
of  a  picture  of  an  ill-dressed  and  sickly-looking  person.  Above 
plaintiff's  picture  was  the  inscription:  "Do  it  now.  The  man 
who  did."  Above  the  other  picture  were  the  words:  "Do  it 
while  you  can.     The  man  who  didn't."    Below  was  the  state- 

2 — *  *  In  an  action  for  an  invasion  ages  wcrald  be   recoverable  in   an 

erf  such  right  the  damages  to  be  action    for    a    violation    of    this 

recovered  are  those  for  which  the  right. ' ' — Pavesich  v.  New  England 

law  authorizes  a  recovery  in  torts  Life  Insurance  Ck>.,  (1905)   122  Ga. 

of  that  character,  and,  if  the  law  190,  50  S.  E.  68,  69  L.  E.  A.  101, 

authorizes  a  recovery  of  damages  106  Am.  St.  Eep.  104,  2  Ann.  Cas. 

for     wounded     feelings     in     other  561. 
torts  of  a  similar  nature,  such  dam- 


EIGHT  OF  PRIVACY  413 

ment:  "  These  two  pictures  tell  their  own  story. "  Under  plain- 
tiff's  picture  was  the  statement :  "In  my  healthy  and  productive 
period  of  life  I  bought  insurance  in  the  N.  Co.,"  etc.  Plaintiff's 
name  did  not  appear  in  the  advertisement.  Plaintiff  had  never 
insured  in  the  N.  Co.  Pleld,  that  plaintiff  has  a  cause  of  action, 
and  that  wounded  feelings  constitute  an  element  of  damage.^ 

2.  Defendants  purchased  of  plaintiff  the  right  to  make  and  sell 
a  pain  killer  prepared  according  to  a  formula  originated  by 
plaintiff.  "Without  authority  from  plaintiff,  they  used  his  name 
as  part  of  their  corporate  title,  and  placed  plaintiff's  picture  and 
a  supposed  statement  and  signature  of  plaintiff  on  every  bottle. 
Held,  that  this  is  a  violation  of  the  right  of  privacy.* 

3— Pavesich  v.  New  England  Mfg.  Co.,  (1907)  73  N.  J.  Eq.  136, 
Life  Insurance  Co.,  supra.  67  Atl.  392. 

4 — Edison    v.    Edison    Polyform 


CHAPTER  LIII 

Death  by  Wrongful  Act 

248.  At  Common  Law. — No  recovery  can  be  had,  at  the 
common  law  or  in  admiralty,  for  death  by  defendant's 
wrongful  act.^  "According  to  the  principles  of  the  com- 
mon law,  injuries  affecting  life  cannot,  in  general,  be  the 
subject  of  a  civil  action.  "^  The  reasons  assigned  for 
such  a  rule  are  not  always  the  same,  nor  are  they  always 
satisfactory,  and  the  principle  has  been  recognized  by 
American  courts  more  because  of  the  fact  that  it  is  firmly 
established  by  precedent  than  because  it  is  based  upon 
any  sufficient  reason.^  Some  of  the  early  English  cases 
say  that  there  can  be  no  civil  recovery  for  wrongful  death, 
because  defendant's  act  gi^'ing  rise  to  the  claim  is  a  crim- 
inal offense,  "an  offense  to  the  Crown,  being  converted 
into  felony,  and  that  drowns  the  particular  offense,'*  and 

1 — Higgins  V.  Butcher,  (c.  1600)  generally  admitted  not  to  be  law." 

Yelverton    89,    80    Eng.    Eepr,    61;  The  weight  of  the  decision  in  Ford 

Smith   V.   Sykes,    (1677)    1   Freem.  v.    Monroe   as   authority,   is   some- 

K.  B.  224,  89  Eng.  Eepr.  160;  Baker  what  lessened  anyway  by  the  fact 

V.    Bolton,    (1808)    1    Camp.    493;  that   the    defendant   seems   not   to 

Grosso  V.  Delaware,  L.  &  W.  R.  Co.,  have  questioned  the  general  right 

(1888)   50  N.  J.  Law  317,  13  Atl.  of  the  plaintiff  to  maintain  the  ac- 

233;  Carey  v.  The  Berkshire  E.  Co.,  tion. 

(1848)   1  Cush,  (Mass.)  475;  Whit-  2— Eden    v.    Lexington,    etc.,    R. 

ford  V.  Panama  R.  Co.,  (1861)   23  Co.,    (1853)    53   Ky.    (14  B.   Mon.) 

N.  Y.  465;  Green  v.  Hudson  River  165,  167. 

R.  Co.,  (1858)  28  Barb.  (N.  Y.)  9.  3— In  Holmes  v.  O.  &  C.  Ry.  Co., 
But,  in  Ford  v.  Monroe,  (1838)  20  (1881)  6  Sawj^er  662,  5  Fed.  75,  79, 
Wend.  (N.  Y.)  210,  the  plaintiff  an  admirality  case,  the  court  ad- 
was  allowed  to  recover  at  common  mits  that  the  common  law  permits 
law  for  the  negligent  killing  of  his  no  recovery  of  damages  for  wrong- 
infant  son.  The  case  is,  as  Chris-  ful  death,  but  expressly  refuses  to 
tiancy,  J.,  says,  in  Hyatt  v.  Adams,  admit  that  the  rule  is  founded  in 
(1867)    16  Mich.    180,   190,   "very  reason  or  consonant  with  justice. 

414 


WRONGFUL  DEATH  415 

that  the  civil  action  is  thereby  lost.^  How  this  reason  can 
apply  to  a  purely  negligent  killing,  as,  for  instance,  by  a 
railroad  company  at  a  crossing,  where  no  felony  is  in- 
volved, has  never  been  made  clear,  and  probably  cannot 
be  made  so.  It  was  also  said  that  the  tort,  being  personal 
to  the  deceased,  is  dead  with  him.^ 

After  conceding  that  arguments  in  favor  of  a  recovery 
would  be  plausible  if  the  question  were  being  considered 
for  the  first  time.  Bacon,  J.,  in  Green  v.  The  Hudson 
River  Co.,®  says:  *'But  I  suppose  the  question  has  been 
too  long  settled,  both  in  England  and  in  this  country,  to 
be  disturbed,  and  that  it  would  savor  somewhat  more  of 
judicial  knight  errantry,  than  of  legal  prudence,  to  at- 
tempt to  unsettle  what  has  been  deemed  at  rest  for  more 
than  two  hundred  and  fifty  years.'*  '^ 

249.  Actions  for  Wrongful  Death,  Under  Modem 
Statutes. — There  being  no  common  law  cause  of  action 
for  wrongful  death,  legislatures  have  remedied  this  glar- 
ing defect  by  two  methods :  first,  by  providing  that  tort 
actions  shall  survive  to  the  personal  representative  of  a 
deceased  person ;  and  second,  by  creating  a  new  cause  of 
action  for  a  wrongful  act  causing  death,  for  the  benefit 
of  certain  classes  of  persons.  The  second  type  of  action 
is  usually  authorized  to  be  brought  by  the  administrator, 
for  the  benefit  of  persons  who  would  have  been  benefi- 
cially affected  by  a  continuance  of  the  life  of  the  deceased. 
Such  a  right  of  action  is  one  given  the  administrator  in 

4 — Smith  V.  Sykes,  supra,  note  1;  813,  note,  referring  to  articles  in 

and  Higgins  v.  Butcher,  ibid.  5  Case  &  Comment  15,  and  12  Cent. 

5 — Higgins  v.  Butcher,  (c.  1600)  L.    J.    465.      See    also    Maitland's 

Yelverton  89,  80  Eng.  Repr.  61.  "Doomesday   Book   and   Beyond." 

6— (1858)   28  Barb.   (N.  Y.)   9.  The  student  will  find  it  worth  while 

7 — It  is,  however,  interesting  to  to  read  the  entire  note,  "Common 

notice  that,  according  to  very  early  Law  Right  of  Action  orf  Parent  for 

English  law,  later  fallen  into  dis-  Loss  of  Services  of  Child  Killed," 

use,  stated  compensation  was  given  41  L.  R.  A.  807  et  seq. 
for  human  life.     See   41   L.  R.  A. 


416  LAW  OF  DAMAGES 

behalf  of  dependent  wife  or  children  of  the  deceased,  for 
loss  of  support,  or  in  behalf  of  an  heir  for  additions  which 
deceased  would  have  made  to  his  estate  and  passed  on  to 
such  heir  if  deceased  had  lived.  A  parent  also  is  given  a 
right  of  recovery  for  loss  of  services  of  his  deceased  child, 
by  modern  statutes. 

The  question  whether  a  judgment  in  favor  of  the  per- 
sonal representative  under  a  statute  providing  a  mere 
survival  of  the  right  of  action  of  the  deceased  will  bar  an 
action  by  such  representative  for  the  loss  sustained  by 
relatives,  where  both  kinds  of  action  are  allowed,  is  a 
troublesome  question,  on  which  the  courts  are  divided. 
On  principle,  it  would  seem  that,  although  the  two  actions 
grow  out  of  the  same  wrongful  act,  the  surviving  right  of 
the  deceased  and  the  right  of  his  relatives  are  separate 
and  distinct  rights ;  and,  as  we  shall  see,  the  fact  that  they 
are  even  based  upon  different  theories  is  well  dem- 
onstrated by  the  different  rules  as  to  measure  of  damages 
in  the  two  kinds  of  action.  A  survival  of  the  right  of 
action  of  the  deceased  for  his  injury  is  one  thing;  the 
accrual  of  a  right  of  action  to  specified  beneficiaries  by 
reason  of  the  loss  of  benefits  which  would  have  accrued  to 
them  but  for  the  wrongful  death  of  the  deceased,  is  quite 
another  thing;  so  it  would  seem  natural  to  suppose  that 
the  procuring  of  a  judgment  or  the  maintenance  of  one 
of  these  actions  would  have  no  relation  to  the  possibility 
of  maintaining  an  action  of  the  other  kind.^ 

8 — In  holding  that  both  actions  with    surviving    relatives    to    take 

may  be  maintained,  the  Wisconsin  under     the     statute." — ^Browm     v. 

court  says:     "The  language  of  the  Chicago  &  N.  W.  Ry.  Co.,   (1898) 

two  provisions  is  plain.     They  re-  102  Wis.  137,  77  N.  W.  748,  78  N. 

fer   to   entirely   distinct  losses  re-  W.  771,  44  L.  R.  A.  579,  5  Am.  Neg. 

coverable  in  different   rights, — the  Eep.  255.     Stewart  v.  United  Elec- 

one  in  the  right  of  the  deceased  for  trie  Light  Co.,  (1906)  104  Md.  332, 

the    loss    occasioned    to    him;    the  65  Atl.  49,  8  L.  R,  A.  (N.  S.)  384. 

other  in  the  right  of  the  surviving  But  see  Louisvalle  &  N.  R.  Co.  v. 

relatives  for  the  loss  to  them.  Both  McEIwain,   (1896)    98  Ky.   700,  18 

aje  dependent   on   the  injury,  but  Ky.  Law  379,  34  S.  W.  236,  34  L. 

only  one  dependent  on  the  death.  R.  A.  788,  56  Am.  St.  Rep.  385. 


WRONGFUL  DEATH 


417 


Where  a  mere  survival  of  the  right  of  action  of  the 
deceased  is  provided  for  by  a  statute,  only  such  elements 
of  damage  as  would  have  been  recoverable  by  the  de- 
ceased can  be  recovered  by  his  personal  representative.® 
A  judgment  so  recovered  becomes  assets  of  the  estate. 
But  if  the  purpose  of  the  statute  is  to  compensate  the  de- 
pendent relatives  or  relatives  entitled  to  the  services  of 
the  deceased,  for  the  loss  which  they  have  suffered,  by 
giving  an  entirely  new  right  of  action,  the  measure  of 
damages  is  different.  The  amount  which  would  have 
compensated  the  deceased  is  then  entirely  immaterial; 
the  question  is  wholly  one  as  to  the  amount  of  damage 
suffered  by  the  relatives  in  whose  behalf  the  suit  is  main- 
tained.^ °    None  except  pecuniary  damage  is  compensated 


Notice  also  the  view  set  forth  in 
Helton  V.  Daly,  (1882)  106  111.  131: 
"The  cause  of  action  is  plainly  the 
wrongful  act,  neglect  or  default 
causing  death,  and  not  merely  the 
death  itself,"  The  writer  submits 
that  this  proposition  is  not  so  sound 
as  that  quoted  above  from  the 
Brown  case.  See  notes,  34  L.  R.  A. 
788,  and  8  L.  R.  A.  (N.  S.)  384. 

"The  death  loss  act  of  the  Eng- 
lish statute  (9  &  10  Vict.  93),  com- 
monly called  'Lord  Campbell's 
Act,'  and  the  various  laws  of  a 
similar  kind  that  have  been  mod- 
eled after  it,  gave  a  new  cause  of 
action  unknown  to  the  common 
law,  for  the  benefit  of  certain 
designated  classes  of  surviving  rel- 
atives. Such  relatives  do  not  take 
the  cause  of  action  for  damages  to 
the  deceased  by  transfer  to  them 
by  operation  of  law,  or  otherwise, 
but  are  enabled  by  statute  to  re- 
cover the  pecuniary  loss  to  them- 
selves caused  by  the  wrongful  tak- 
ing off  of  the  decedent,  the  continu- 
ation of  whose  life  would  have 
Bauer  Dam. — 27 


been  beneficial  to  them." — Brown 
V.  Chicago  &  N.  W.  Ry.  Co.,  supra. 
Strangely  enough,  the  theory  that 
Lord  Campbell's  Act  and  similar 
statutes  create  an  entirely  new 
cause  of  action,  is  characterized 
as  "mistaken,"  in  L  R.  A.  1916  C 
973,  note. 

The  difference  between  the  two 
types  of  action  sometimes  becomes 
very  important.  If  the  statute 
provides  merely  for  survival  of  the 
action,  a  release  by  deceased  bars 
action;  but  if  an  entirely  new  ac- 
tion is  provided,  in  favor  of  certain 
classes  of  beneficiaries,  by  the  bet- 
ter view,  a  release  by  the  deceased 
constitutes  no  bar,  since  he  can- 
not have  given  an  effective  release 
of  a  claim  not  his  own.  Earley  v. 
Pacific  El.  R.  Co.,  (Cal.  1917)  167 
Pac.  513.  See  note  on  this  case, 
27  Yale  L.  J.  275. 

9 — Broughel  v.  Southern  New 
England  Tel.  Co.,  (1901)  73  Conn. 
614,  46  Atl.  827. 

10 — "The  cause  of  action  there- 
by given  is  not  to  the  estate  of  the 


418 


LAW  OF  DAMAGES 


for  in  such  actions."  The  mental  or  physical  suffering 
of  the  deceased  or  of  his  surviving  relatives  is  not  a  basisX 
of  damages.  Loss  of  support  or  service,  and  not  rela-  I 
tionship,  is  the  principal  basis  of  the  usual  statutory  right 
of  action.  The  value  of  the  support  lost  by  the  depend- 
ents can,  of  course,  be  only  estimated.  In  arriving  at 
such  value,  it  is  proper  to  consider  the  age,  capacity,  char- 
acter, habits,  hea]th,  and  probable  expectation  of  life  of 
the  deceased  at  the  time  of  his  fatal  injury,  and  also  the 
period  of  time  during  which  the  dependents  would  have 
been  likely  to  receive  support  from  him,  had  he  not  been 


deceased  person,  but  to  his  or  her 
representatives  as  trustees,  not  for 
purposes  of  general  administration, 
but  for  the  exclusive  use  of 
specified  beneficiaries.  •  *  * 
The  wrong  defined  indicates  no  in- 
jury to  the  estate  of  the  person 
killed,  and  cannot,  either  logically 
or  legally,  be  said  to  affect  any 
property  rights  of  such  person,  un- 
less it  can  be  maintained  that  a 
person  has  a  property  right  in  his 
own  existence.  The  property  right, 
therefore,  created  by  this  statute 
is  one  existing  in  favor  of  the  bene- 
ficiaries of  a  reccrvery  only,  and  de- 
pends for  its  existence  upon  the 
death  of  the  party  injured.  It  had 
no  previous  life  and  cannot  be  said 
to  have  been  injured  by  the  very 
act  which  creates  it.  Whatever 
claim  a  wife  or  children  have  at 
law  upon  the  husband  and  father 
for  support  perishes  with  the  life 
of  such  person,  and  thereafter  their 
claims  upon  his  estate  are  governed 
by  statutory  rules." — Hegerich  v. 
Keddie,  (1885)  99  N.  Y.  258,  1  N. 
E.  787.  See  also  Smith  v.  Lehigh 
Valley  E.  Co.,  (1904)  177  N.  T. 
379,  69  N.  E.  729. 

11— Smith   V.   Lehigh   Valley   E. 
Co.,  supra;  nilinois  Central  E.  Co. 


v.  Barrom,  (1866)  5  Wall.  (U.  S.) 
90,  18  L.  ed.  591;  Munro  v.  Pacific 
Dredging,  etc.,  Co.,  (1890)  84  Calif. 
515,  24  Pac.  303,  18  Am.  St.  Eep. 
248;  Morgan  v.  Southern  Pacific  Co., 
(1892)  95  Cal.  510,  30  Pac.  603,  17 
L.  E.  A.  71,  29  Am.  St.  Eep.  143; 
Denver  &  E.  G.  E.  Co.  v.  Spencer 
(1900)  27  Colo,  313,  61  Pac.  606, 
51  L.  E.  A.  121;  Louisville,  N.  A. 
&  C.  Ey.  Co.  v.  Eush,  (1890)  127 
Ind.  545,  26  N.  E.  1010;  Hurst  v. 
Detroit  City  Ey.  Co.,  (1891)  84 
Mich.  539,  48  N.  W.  44;  Schaub  v. 
Hannibal  &  St.  J.  E.  Co.,  (1891) 
106  Mo.  74,  16  S.  W.  924;  Tilley 
V.  Hudson  Eiver  E.  Co.,  (1862- 
1864)  24  N.  Y.  471,  29  N.  Y.  252, 
86  Am.  Dee.  297;  Davis  v.  Guar- 
nieri,  (1887)  45  O.  St.  470,  15  N. 
E.  350,  4  Am.  St.  Eep.  548;  Penn- 
sylvania E.  Co.  v.  Goodman,  (1869) 
62  Pa.  329.  So  held  also  under 
Lord  Campbell's  Act  itself,  Blake 
V.  Midland  Ey.  Co.,  (1852)  18  Q. 
B.  93,  21  L.  J.  Q.  B.  237;  118  Eng. 
Eepr.  35,  88  Eev.  Eep.  543;  and 
likewise  as  to  damages  for  wrong- 
ful death,  under  federal  employ- 
ers' liability  act,  MeCouUough  v. 
Chicago,  E.  L  &  P.  By.  Co.,  (1913) 
160  la.  524,  142  N.  W.  67. 


WRONGFUL  DEATH 


419 


killed.^2  In  calculating  damages  for  "wrongful  death,  it  is 
not  proper  to  take  into  consideration  earnings  of  the  de- 
ceased in  an  illegal  occupation ;  but  the  mere  fact  that  he 
has,  in  connection  with  his  regular  and  lawful  business, 
done  things  that  are  unlawful  or  immoral,  does  not  inter- 
fere with  the  right  to  introduce  evidence  as  to  his  lawful 
earnings  in  his  regular  business. ^^ 

Funeral  expenses  of  the  person  wrongfully  killed 
would  seem  to  be  as  clear  a  pecuniary  loss  as  could  be 
conceived  of,  and  they  are  usually  allowed  as  an  element 
of  damage.^ ^ 

Pecuniary  loss  to  plaintiff  does  not  depend  upon  any 
legal  liability  of  the  deceased  to  support  plaintiff. 
* '  There  must,  however,  appear  some  reasonable  expecta- 
tion of  pecuniary  assistance  or  support  of  which  they 
have  been  deprived."  ^^    If  plaintiff  had  a  reasonable  ex- 


12 — "In  but  few  cases  arising 
under  this  act  is  the  plaintiff  able 
to  show  direct,  specific  pecuniary 
loss  suffered  by  the  next  of  kin 
from  the  death,  and  generally  the 
basis  for  the  allowance  of  damages 
has  to  be  found  in  proof  of  the 
character,  qualities,  capacity  and 
condition  of  the  deceased,  and  in 
the  age,  sex,  circumstances  and 
condition  of  the  next  of  kin.  The 
proof  may  be  unsatisfactory,  and 
the  damages  may  be  quite  uncer- 
tain and  contingent,  yet  the  jurors 
in  each  case  must  take  the  ele- 
ments thus  furnished  and  make  the 
best  estimate  of  damages  they 
can." — Lockwood  v.  New  York,  L. 
E.  &  W.  E.  Co.,  (1885)  98  N. 
T.  523.  See  also  Macon  &  W.  R. 
Co.  V.  Johnson,  (1868)  38  Ga.  409; 
and  Chicago  &  A.  R.  Co.  v.  Shan- 
non, (1867)  43  111.  338.  In  Rail- 
road Co.  V.  Baches,  (1870)  55  111. 
379,  and  in  many  other  cases,  it  is 
held  that  the  wealth  or  poverty  of 


the  widow  or  next  of  kin  cannot 
be  considered  in  assessing  dam- 
ages, although  many  cases  hold 
that  the  "age,  sex,  circumstances 
and  condition  of  the  next  of  kin" 
may  be  considered,  as  does  the 
Lockwood  case  supra. 

13 — 'Richardson  v.  Sioux  City, 
(1915)  172  la.  260,  154  N.  W.  430, 
Ann.  Cas.   1918  A  618. 

14 — Hollyday  v.  The  Steamer 
David  Reeves,  (1879)  5  Hughes  (U. 
S.)  89;  Pennsylvania  Co.  v.  Lilly, 
(1881)  73  Ind.  252;  Rains  v.  St. 
Louis,  etc.,  R.  Co.,  (1879)  71  Mo. 
164,  36  Am.  Rep.  459;  Pack  v. 
Mayor  of  New  York,  (1850)  3  N. 
Y.  489.  Contra:  Clark  v.  London! 
General  Omnibus  Co.,  Limited,| 
(1906)  2  K.  B.  648,  6  Ann.  Cas.  198.  \ 
See  collection  of  citations,  6  Ann.* 
Cas.  201  note. 

15 — Michigan  Central  R.  Co.  v. 
Vreeland,  (1913)  227  U.  S.  59,  57 
L.  ed.  417,  33  Sup.  Ct.  192,  Ann. 
Cas.  1914  C  176, 


420  LAW  OF  DAMAGES 

pectation  of  assistance  from  tlie  deceased  during  the  re- 
mainder of  his  life,  such  as  can  be  measured  in  money,  he 
has  a  right  of  action.^® 

Where  a  parent  or  husband  of  deceased  sues  for  loss 
of  services,  the  same  principles  govern  as  in  the  common 
law  action  for  loss  of  services.^ '^ 

Another  element  of  damages,  sometimes  allowed,  and 
sometimes  not,  is  the  loss  of  the  opportunity  to  inherit 
from  the  deceased  a  sum  which  he  would  have  made  had 
he  not  been  killed,  and  which  would  have  been  inherited 
by  the  heir  bringing  the  action.  Here  also  the  damages 
are  more  or  less  conjectural;  but  this  does  not  prevent 
a  recovery  of  what  is,  under  all  circumstances  shown  by 
the  evidence,  a  reasonable  amount,  according  to  some 
holdings.^  ^ 

Usually,  statutes  allowing  recovery  for  wrongful  death 
authorize  the  awarding  of  damages  only  for  a  loss  actual- 
ly sustained  and  only  damages  commensurate  with  the 
loss.  But  where  a  wrongful  death  statute  merely  names 
a  penal  sum  recoverable  by  certain  relatives,  no  ques- 
tion as  to  measure  of  damages  is  presented,  and  it  is  error 
to  consider  the  amount  of  the  actual  damage  suffered  by 
the  plaintiff  and  to  give  a  verdict  in  a  smaller  or  larger 
sum  than  the  penal  sum  named  in  the  statute. ^^ 

250.  Mitigation. — ^As  in.  other  fields,  evidence  tending 
to  lessen  or  increase  the  plaintiff's  loss  is  generally  ad- 
missible; but  facts  wholly  independent  of  the  death  and 
not  in  any  way  affecting  the  amount  of  the  loss  at  the 
time  of  its  occurrence,  are  not  admissible  in  mitigation. 

16  —  Hirschkovitz     v.     Pennsyl-  18 — Allowed:  Demarest  v.  Little, 

vania  E.  Co.,  (1905)  138  Fed.  438;  (1885)  47  N.  J.  Law  28.     Contra: 

Fowler  v.   Chicaga,   etc.,   Ry.   Co.,  Wiest    v.    Electric    Traction    Co., 

(1908)    234  111.  619,  85  N.  E.  298;  (1901)  200  Pa.  148,  49  Atl.  891,  58 

Bremer  V.  Minneapolis,  etc.,  Ry.  Co.,  L,  R.  A.  666;  Rochester  v.  Seattle, 

(1905)    96   Minn.   469,    105   N.   W.  R.  &  S.  Ry.  Co.,   (1913)    75  Wash. 

494.  559,  135  Pac.  209. 

17 — See    Telfer   v.    Northern   R.  19— "By  the  terms  of  the  stat- 

Co.,  (1862)  30  N.  J.  Law  188.  ute,  and  as  it  is  administered  in 


WRONGFUL  DEATH  421 

The  fact  that  plaintiff  may  have,  in  some  degree,  com- 
pensated himself  for  the  loss  of  husband  or  wife,  by 
marrying  again,  does  not  mitigate  damages. ^^  Neither 
are  damages  mitigated  by  the  fact  that  the  life  of  the 
deceased  was  insured  in  favor  of  the  plaintiff.^ ^ 

251.  Evidence  of  the  Poverty  of  the  Plaintiff  Usually 
Inadmissible. — The  only  question  for  the  jury  to  consider 
in  estimating  damages  is  the  question  of  the  extent  of 
pecuniary  injury  to  the  persons  in  whose  favor  the  right 
of  action  has  been  given  and  by  whom  it  is  being  prose- 
cuted ;  and,  as  this  cannot,  under  ordinary  circumstances, 
depend  upon  the  plaintiff's  being  poor  or  disabled,  evi- 
dence of  these  facts  is  not  usually  held  admissible.^^ 

252.  Certainty. — Only  reasonable  certainty  of  proof  is 
required  in  order  to  set  the  measure  of  damages.  The 
fact  that  no  one  witness  can  state  in  dollars  and  cents  the 
exact  amount  of  damage  that  has  resulted  to  the  next  of 
kin,  does  not  preclude  recover>^  Proof  of  character, 
habits,  and  other  relevant  matters,  goes  to  the  jury,  and 

Missouri,  whether  the  plaintiff  has  the  plaintiff  has  suffered  no  dam- 

or  not   suffered  pecuniary   loss   or  age. ' ' — Eaisor  v.  Chicago  &  A.  R. 

damage   is   immaterial.     His   right  Co.,  (1905)  215  111.  47,  74  N.  E.  69, 

to   recover   depends   solely   on    the  106  Am.  St.  Eep.  153,  2  Ann.  Cas. 

plaintiff's  relatiorn  to  the  deceased  802,  adopting  the  language  of  the 

and  the  culpability  of  the  defend-  Appellate   Court  in  deciding  same 

ant,    within    the    meaning    of    the  case,  117  111.  App.  488,  citing  Raf- 

statute  and  as  covered  in  the  dec-  ferty   v.    Missouri    Pacific    R.    Co., 

laration.    From  this  it  follows  that  (1884)    15  Mo.   App.   559. 

a    plaintiff    who    has    suffered    no  20 — ^Davis    v.    Guarnieri,    (1887) 

damage,  but  has  even  been  relieved  45  O.  St.  470,  15  N.  E.  350,  4  Am. 

by  the  death  of  a  pecuniary  bur-  St.  Rep.  548. 

den,  may  recover  $5,000.  If,  in  any  21 — Pittsburg,  etc.,  R.  Co.  v. 
case,  any  part  of  the  amount  re-  Thompson,  (1870)  56  111.  138;  Alt- 
covered  may  be  deemed  compensa-  horf  v.  Wolfe,  (1860)  22  N.  Y. 
tory,  this  is  merely  incidental,  the  355;  Harding  v.  Townsend,  (1871) 
primary  object  of  the  statute  be-  43  Vt.  536. 

ing  punitory.    No  more  and  no  less  22 — Illinois    Central    R.    Co.    v, 

J8  reepverable,  and  this  even  though  Baches,  (1870)  55  111,  379, 


422  LAW  OF  DAMAGES 

the  damages,  usually  being  very  difficult  of  measurement, 
are  left  very  largely  to  the  judgment  of  the  jury.^^ 

253.  Exempla,ry  Damages  are  given  only  if  authorized 
by  the  statute  giving  an  action  for  wrongful  death,  ac- 
cording to  the  weight  of  authority.^* 

254.  Abatement  of  the  Action  Through  Death  of  the 
Sole  Beneficiary. — Where  the  sole  beneficiary  under  a 
wrongful  death  statute  dies  before  judgment,  the  action 
abates,  unless  there  is  provision  otherwise  in  the  statute. 
**The  action  being  a  totally  new  one,  the  creation  of  the 
statute,  the  procedure  prescribed  by  the  statute  must  be 
strictly  followed,  and  it  is  only  those  named  in  the  statute 
as  persons  entitled  to  bring  the  action  who  can  bring 
it."  25 

CASE  ILLUSTRATIONS 

1.  It  appears  that  defendant,  a  physician,  negligently  treated 
plaintiff's  intestate,  so  that  he  suffered  greatly  and  died  five  days 
after  the  beginning  of  the  treatment.  In  an  action  under  a 
statute  providing  only  a  survival  of  the  action  of  deceased,  only 

23 — ^Fowler  v.  Chicago,  etc.,  Ky.  The  Virginia  view  that,  under  a 

Co.,   (1908)    234  111.  619,  85  N.  E.  statute     permitting     the     jury     to 

298.  assess  such  damages  as  it  may  deem 

24 — Swift  V.  Johnson,  (1905)  138  fair  and  just,  exemplary  damages 

Fed.  867,  71  C.  C.  A.  619;  Burk  v.  may  be  assessed,  seems  a  distortion 

Areata,  etc.,  E.  Co.,  (1899)  125  Cal.  of  the  meaning  of  the  words  of  the 

364,  57  Pae.  1065,  73  Am.  St.  Eep.  statute,  and  is  not  usually  followed. 

52;   Moffatt  v.   Tenney,    (1892)    17  See  Matthews  v.  Warner,  (1877)  29 

Colo.   189,  30  Pac.  348;   Conant  v.  Gratt.  (Va.)  570,  26  Am.  Eep.  396. 

Griffin,    (1868)    48   111.  410;   Atchi-  Cf.  Potter  v.  Chicago,  etc.,  E.  Co., 

son,  T.  &  S.  F.  Ey.  Co.  v.  Townsend,  (1867)    21   Wis.  372,   94  Am.  Dec. 

(1905)    71  Kan.  524;   81  Pac.  205,  548. 

6  Ann.  Cas.  191;  Garrick  v.  Florida  See  collection  of  citations,  6  Ann. 

Central,  etc.,  E.  Co.,  (1898)   53  S.  Cas.  194  note. 

Car.  448,  31  S.  E.  334,  69  Am.  St.  25— McHugh  v.  Grand  Trunk  Ey. 

Eep.  874;  Smith  v.  Chicago,  etc.,  E.  Co.,  (1901)  2  Ont.  L.  E.  600,  2  Can. 

Co.,   (1895)    6   S.  Dak.  583,  62  N.  Ey.  Cas.  7. 
W.  967,  28  L.  E.  A.  573. 


WRONGFUL  DEATH  423 

such  damages  can  be  allowed  as  the  deceased  suffered  in  his  life- 
time.   A  verdict  of  $3,000  is  excessive.^^ 

2.  In  an  action  for  fatal  injuries  occasioned  to  plaintiff's  in- 
testate by  defendant's  negligence,  the  court  permitted  the  jury- 
to  consider  intestate 's  mental  and  physical  suffering,  although  he 
was  unconscious  from  the  time  of  the  accident  until  his  death. 
Held,  error. 27 

3.  E  was  fatally  injured  by  a  collision  on  defendant's  road. 
Before  his  death,  E  released  the  defendant,  in  consideration  of 
the  payment  to  him  of  his  hospital  expenses  and  $5,200  in  money. 
After  E's  death,  his  widow  is  not  barred  by  E's  release  from 
maintaining  action  for  his  wrongful  death.  The  statute  here 
gave  an  entirely  new  right  of  action  to  the  heirs  or  personal  rep- 
resentatives, and  did  not  provide  for  a  mere  survival  of  the 
right  of  action  which  had  already  accrued  to  deceased.^s 

4.  Deceased,  whose  estate  consisted  of  an  income  of  nearly 
£4,000  a  year,  was  killed  by  defendant's  negligence.  The  estate, 
upon  his  death,  went  to  the  eldest  son,  subject  to  a  jointure  of 
£1,000  a  year  for  life  to  the  widow  and  £800  a  year  to  the  eight 
younger  children.  Held,  that  an  action  for  the  wrongful  death 
could  be  maintained,  although  the  total  income  was  not  dimin- 
ished by  the  death.  The  cutting  off  of  reasonable  expectations 
of  educational  and  other  advantages  for  any  one  of  the  family 
constitutes  a  basis  for  damages.^^ 

5.  Plaintiff  sues  for  the  wrongful  death  of  his  wife.  He  is  en- 
titled to  recover  the  pecuniary  value  of  the  wife's  domestic  serv- 
ices, minus  the  cost  of  her  maintenance.^^ 

6.  B  was  killed  through  the  negligence  of  defendant.  In  an 
action  brought  by  his  widow  as  administratrix,  the  following  in- 
struction was  requested  by  defendant  and  was  refused:    ''The 

26— Eamsdell   v.    Grady,    (1903)  Washburn    Car-Wheel    Co.,    (1887) 

97  Me.  319,  54  Atl.  763.  145  Mass.  281,  14  N.  E.  106,  1  Am. 

27 — Kennedy  v.  Standard  Sugar  St.  Rep.  458. 

Refinery,   (1878)    125  Mass.  90,  28  28— Earley  v.  Pacific  El.  R.  Co., 

Am.    Rep.    214,    a    mere    surviving  (Calif.  1917)   167  Pae.  513. 

action.     In  an  action  under  a  sur-  29 — Pym  v.  Great  Northern  Ry. 

vival  statute,  vi^here  plaintiff's  in-  Co.,  (1863)  4  B.  &  S.  396,  122  Eng. 

testate   was   found    dead,   with   na  Repr.  508. 

proof  of  any  suffering,  it  has  been  30 — Gorton    v.    Harmon,    (1908) 

held    that    only    nominal    damages  152  Mich.  473,  116  N.  W.  443. 
can    be    recovered.      Mulchey    v. 


424  LAW  OF  DAMAGES 

pecuniary  circumstances  of  the  plaintiff  and  her  infant  daughter, 
at  the  time  of  and  since  the  death  of  said  B,  cannot  increase  or 
diminish  the  amount  of  damages  which  the  plaintiff  is  entitled 
to  recover  in  this  suit,  in  case  the  jury  find  the  issue  for  her,  and 
if  the  jury  so  find,  they  are  instructed,  in  the  assessment  of 
damages,  to  disregard  all  the  testimony  as  to  the  pecuniary  cir- 
cumstances of  said  plaintiff  and  her  infant  daughter,  at  the  time 
of  and  since  the  death  of  the  said  B."  Held,  error  to  refuse 
this  instruction.  **The  feelings  of  the  widow  or  next  of  kin, 
their  wealth  or  poverty,  or  any  other  fact  than  the  pecuniary 
injury,  cannot  be  considered  in  assessing  the  damages."  ^^ 

7.  Plaintiff's  intestate  was  killed  by  negligence  of  deceased, 
leaving  plaintiff,  his  widow,  and  seven  children,  of  whom  all 
were  of  age.  C.  W.,  one  of  the  sons,  who  lived  with  deceased, 
was  so  crippled  by  rheumatism  that  he  was  unable  to  work.  Held, 
that  it  was  error  to  admit  evidence  of  the  helplessness  of  C.  W.^^ 

8.  Testator,  when  killed,  had  three  children,  all  grown,  and 
none  dependent  upon  him  for  support.  The  principal  basis  of 
a  claim  is  '  *  that  the  death  of  deceased  put  an  end  to  accumula- 
tions which  he  might  have  thereafter  made  and  which  might  have 
come  to  the  next  of  kin.  *  *  *  In  determining  the  proba- 
bility of  accumulations  by  deceased  if  he  had  continued  in  life, 
no  account  should  be  taken  of  the  income  derivable  from  his  in- 
vestments. These  have  come  in  bulk  to  the  children,  who  may,  if 
they  choose,  accumulate  such  income.  A  deprivation  of  the  prob- 
ability of  his  accumulating  therefrom  is  no  pecuniary  injury. 
*  *  *  It  is  plain  that  in  determining  probable  future  accu- 
mulations attention  should  be  restricted  to  such  as  would  arise 
from  the  labor  of  deceased  in  his  business."  ^^ 

9.  Plaintiffs,  sons  and  daughters,  bring  action  for  the  death 
of  their  mother.  Defendant  offered  in  evidence  the  will  of  de- 
ceased, in  which  she  gave  all  her  property  to  her  four  daughters. 
The  will  was  admissible  in  evidence.  "The  damages  must  be 
actual,  and  for  loss  of  a  pecuniary  nature.    Nothing  is  given  by 

31— Illinois    Central    E.    Co.    v.  32— Chicago,  P.  &  St.  L.  E.  Co. 

Baches,  (1870)  55  111.  379.  The  case  v.  Woolridge,    (1898)    174  111.  330, 

further  holds  that  a  deformity  of  51  N.  E.  701. 

the  left  hand  of  plaintiff,  existing  33 — Demarest    v.    Little,    (1885) 

from  birth,  cannot  be  considered  in  47  N.  J.  Law  28. 
assessing  damages. 


WRONGFUL  DEATH  425 

way  of  solace.  Under  such  a  law,  we  cannot  see  how  it  can  be 
maintained  that  one  has  been  damaged  by  the  death  when  he 
has  received  from  the  estate  of  the  deceased  property  exceeding 
in  value  all  the  prospective  benefits  which  would  have  accrued 
to  him  had  the  death  not  ensued. ' '  ^^ 

10.  Plaintiff  married  again  since  the  wrongful  death  of  his 
wife  through  the  negligence  of  the  defendant.  His  second  mar- 
riage cannot  be  considered  in  mitigation  of  damages.^^ 

11.  Through  the  negligence  of  the  defendant,  plaintiffs'  son, 
who  had  reached  his  majority,  was  killed.  He  did  not  live  with 
them,  but  occasionally  visited  them  and  made  contributions  to 
their  support,  to  the  amount  of  about  £20  per  year.  Judgment 
for  £120.  But  it  was  further  held  that  there  was  no  right  of 
action  for  funeral  or  mourning  expenses.^^ 

12.  Father  brings  action  under  federal  employers'  liability 
act,  for  death  of  his  adult  son,  but  proves  no  loss  of  reasonable 
expectation  of  pecuniary  assistance  or  support.  No  recoverj^  can 
be  had.^'^ 

13.  Intestate,  son  of  plaintiff,  was  killed  by  the  negligence  of 
defendant.  He  was  39  years  old,  able-bodied,  a  brakeman  earn- 
ing $2.25  per  day.  He  had  no  one  but  himself  to  support,  had 
accumulated  nothing,  and  died  almost  penniless.  At  the  time 
of  his  death,  he  was  not  in  line  of  promotion  in  his  calling.  He 
paid  his  mother,  the  plaintiff,  not  over  $50  per  year,  and  did 
chores  for  her  when  \asiting  at  home  about  twice  a  year.  Held, 
that  a  verdict  for  $3,500  should  be  reduced  to  $2,000.38 

14.  Plaintiff's  intestate  had  only  a  feeble  intellect  and  earned 

34— San  Antonio,  etc.,  By.  Co.  v.  waiter,   (1913)   128  Tenn.  363,  161 

Long,    (1894)    87    Tex.    148,   27   S.  S.  W.  1136,  L.  R.  A.  1916  C  964. 

W.  113,  24  L.  R.  A.  637,  47  Am.  38— Hutchins  v.  St.  Paul,  M.  & 

St.  Rep.  87.     Contra:  Railroad  Co.  M.  Ry.  Co.,  (1890)  44  Minn,  5,  46 

V.  Barron,  (1867)  5  Wall.  90,  18  L.  N.  W.   79,  16  Am.  Neg.   Cas.   294. 

ed.   591;    Terry   v.   Jewett,    (1879)  See  also  Wiest  v.  Electric  Traction 

17  Hun  (N.  Y.)   395.  Co.,    (1901)    200    Pa.    145,   49    Atl. 

35— Chicago   &   E.    I.   R.    Co.    v.  891,  58  L.  R.  A.  666,  holding  that, 

DriscoU,  (1903)  207  HI.  9,  69  N.  E.  where    deceased    has    never    aceu- 

620.  mulated  any  property,  the  jury  has 

36 — 'DaJton   v,   Sorutheastern   Ry.  no  right  to  take  into  consideration 

Co.,  (1858)  4  C.  B.  (N.  S.)  296,  27  the  possibility  that  he  might  have 

L.  J.  C.  P.  227.  accumulated  property  if  he  had  not 

37 — Carolina,    etc.,    Ry.    v.    She-  been  killed. 


426  LAW  OF  DMIAGES 

only  $1.40  a  day.  A  verdict  for  $3,400  for  his  wrongful  death 
is  excessive,  under  a  statute  measuring  the  damages  by  pecuniary 
injuries  to  the  widow  or  next  of  kin.  This  award  of  the  sum 
in  gross  would  enable  the  family  to  realize  three-fourths  of  intes- 
tate's  income,  in  perpetuity.^* 

15.  Plaintiff  was  a  light  porter  in  a  hospital.  Deceased,  hia 
son,  21  years  old,  porter  to  a  saddler  at  wages  of  23s.  per  week, 
was  killed  through  the  negligence  of  the  defendant.  Plaintiff 
had  usually  carried  up  coals  to  the  wards  of  the  hospital,  for 
which  he  was  paid  3s.  6d.  a  week,  but,  in  consequence  of  plain- 
tiff's illness,  the  deceased  had  for  some  time  carried  up  the  coals 
for  him.  Held,  that  the  action  is  maintainable,  but  that  a  ver- 
dict for  £75  is  excessive.*** 

16.  Plaintiff's  intestate  was  killed  at  the  age  of  four  years.  A 
verdict  for  $5,000  is  held  excessive.  This  amount  far  exceeds 
any  reasonable  probability  of  pecuniary  benefit  from  the  con- 
tinued life  of  the  deceased.  The  liability  of  the  father  for 
support  and  education  of  the  child  during  minority,  and  the 
amount  the  father  would  probably  receive  from  the  son's  earn- 
ings during  or  after  minority,  must  be  considered.* ^ 

17.  Defendant  negligently  maintained  in  a  street  an  open 
reservoir,  into  which  plaintiff's  4-year-old  boy  slipped  and  fell, 
so  that  he  was  drowned.  Plaintiff  may  maintain  his  action,  and 
a  verdict  for  $800  damages  is  not  excessive.*^ 

39 — Chicago  &  N.  W.  By.  Co.  v.  41  — Graham     v.     Consolidated 

Bayfield,  (1877)  37  Mich.  205.  Traction  Co.,  (1899)  64  N.  J.  Law 

40 — Franklin  v.  Southeastern  Ey.  10,  44  Atl.  964. 

Co.,  (1858)  3  H.  &  N.  211,  8  E.  E.  42— Chicago  v.  Major,  (1857)   18 

C.  419,  157  Eng.  Eepr.  448.  111.  349,  68  Am.  Dec.  553. 


PARTY 

STATUTORY  PROCEEDINGS  FOR  THE  CONDEM- 
NATION OF  PROPERTY 

CHAPTER  LIV 
Eminent  Domain 

255.  In  General. — ^Under  provisions  of  federal  and 
state  constitutions,  private  property  cannot  be  taken  for 
public  use  without  just  compensation.^ 

The  owner  of  land  taken  for  public  use  by  virtue  of  the 
right  of  eminent  domain,  has,  as  a  general  rule,  a  right 
to  recover  the  market  value  of  the  premises  actually 
taken,  and,  in  addition,  any  damages  which  proximately 
result  to  the  portion  of  the  same  tract  not  taken.  Dam- 
ages recoverable  for  injury  to  the  portion  not  taken  in- 
clude both  damage  caused  by  the  taking  of  the  property 
acquired  for  public  purposes  and  damage  occasioned  by 
reason  of  the  use  to  which  the  part  taken  is  put.^ 

256.  Value  of  Land  Taken.— In  arriving  at  the  value  of 
land  taken,  the  jury  must  not  consider  the  price  that  the 
property  would  bring  under  special  or  extraordinary  cir- 
cumstances, but  its  fair  cash  value  if  sold  in  the  market 
under  ordinary  circumstances.^     In  order  to  show  the 

1— TT.    S.    Const.,    Amendments,  District,  (1894)   149  HI.  87,  36  N. 

Art.  V.  E,  1033 ;  Haslam  v.  Galena,  etc.,  E. 

2— South  Buffalo  Ey.  Co.  v.  Kirk-  Co.,  (1872)   64  HI.  353. 

over,  (1903)   176  N.  Y.  301,  68  N".  "What      constitutes     'market 

E.  366.  value'  is  a  question  of  law,  and  is 

3 — Brown  v.  Calumet  Eiver  E.  the  price  which  the  owner,  if  de- 
Co.,  (1888)  125  m.  600,  18  N.  E.  sirous  of  selling,  would  under  or- 
283;    Tedens  v,   Chicaga  Sanitary  dinary   circumstances    surrounding 

427 


M  LAW  OF  DA]\IAG£iS 

market  value,  it  is  proper  to  show  the  price  at  which 
similar  tracts  in  the  same  neighborhood  are  generally 
held  for  sale,  and  at  which  they  are  sometimes  actually 
sold  in  the  course  of  ordinary  business.  Market  price  is 
not  to  be  shown  by  evidence  of  particular  sales  of  similar 
tracts.*  Although  the  special  value  of  the  land  to  this 
owner  or  to  the  taker  may  be  considered  as  one  of  the  ele- 
ments tending  to  show  what  it  would  bring  in  the  market, 
such  special  value  is  not  always  the  market  value;  and 
only  the  market  value  can  be  allowed.^  The  land  ''is  to 
be  valued  precisely  as  it  would  be  appraised  for  sale  upon 
execution,  or  by  executor  or  guardian ;  and  without  any 
regard  to  the  external  causes  that  may  have  contributed 
to  make  up  its  present  value.  The  jury  are  not  required 
to  consider  how  much,  nor  permitted  to  make  any  use  of 
the  fact  that  it  may  have  increased  in  value  by  the  pro- 
posal or  construction  of  the  work  for  which  it  is  taken."  • 
Not  only  the  present  uses  of  the  land,  but  its  present  capa- 
bilities, must  be  considered;  and  so,  where  the  fee  is 
taken,  consideration  must  be  given  to  any  mine  under  the 
surface,  although  it  has  never  been  worked,  and  for  any 
water  power  taken,  even  though  it  has  never  been  used. 
These  are  among  the  elements  giving  the  property  its 
market  valued 

the  sales  of  property  have  sold  the  Co.,  (1854)  4  0.  St.  308;  Moulton  v. 

property   for,   and   what   a  person  Newburyport  Water  Co.,  (1884)  137 

desirous    of    purchasing,    but    not  Mass.    163;    Sargent    v.    Town    of 

compelled  to  purchase,  would  have  Merrimac,    (1907)    196   Mass.   171, 

paid  for  it."— Chicago  v.  Farwell,  81  N.  E.  970,  11  L.  B.  A.  (N.  S.) 

(m.  1919)   121  N.  E.  795.  996. 

4 — iFriday    v.    Pennsylvania    R.  7 — Haslam.  v.  Galena,  etc.,  B.  Co., 

Co.,    (1903)    204   Pa.   405,   54    Atl.  (1872)   64  111.  353.     Where  land  is 

339;  Becker  v.  Philadelphia  &  R.  T.  taken  by  a  boom  company  for   a 

E.    Co.,    (1896)     177    Pa.    252,    35  boom,  it  is  proper  to  consider  as 

Atl.  617,  35  L.  R.  A.  583.  an  element  of  value  its  adaptabil- 

5 — San  Diego  Land,  etc.,  Co.  v.  Ity  to  boom  purposes.    Mississippi, 

Neale,  (1891)  88.  Calif.  50,  25  Pae.  etc.,  Boom  Co.  v.  Patterson,  (1879) 

977,  11  L.  R.  A.  604.  98  U.  S.  403,  25  L.  ed.  206. 

6 — Gieay   v,   Cincinnati,   etc.,  'R. 


EMINENT  DOMAIN  429 

Houses  and  trade  fixtures  pass  to  the  condemnor,  and 
it  must  pay  for  them.* 

The  value  of  the  land  is  to  be  taken  as  of  the  date  of 
filing  the  location,  and  not  as  of  the  date  when  the  land  is 
entered  upon  and  construction  commenced.® 

There  is  a  conflict  of  authority  on  the  question  whether 
loss  of  profits  or  injury  to  business  is  a  recoverable  ele- 
ment of  damage  in  eminent  domain,  with  a  majority  of 
courts  holding  that  it  is  not.^^ 

257.  Difference  Between  the  Taking  of  the  Fee  and  the 
Taking  of  a  Mere  Easement. — It  is  sometimes  very  im- 
portant to  know  whether  the  condemnor  is  taking  a  title 
in  fee  simple  or  is  taking  a  mere  easement.  Obviously, 
the  compensation  for  an  easement  will  often  be  much  less 
than  compensation  for  the  fee.  For  instance,  where  a 
railroad  seeks  to  acquire  a  mere  easement  over  valuable 
oil  or  mineral  lands,  it  is  required  to  pay  only  the  value 
of  the  easement,  and  not  the  value  of  the  fee,  which  might 
be  many  times  as  much."    However,  where  the  easement 

8 — ^Kansas  City  v.  Morse,  (1891)  etc.,  R.  Co.  v.  Weiden,  (1888)  70 
105  Mo.  510,  16  S.  W.  893;  Finn  v.  Mich.  390,  38  N.  W.  294.  See  ar- 
Gas  &  Water  Co.,  (1S82)  99  Pa.  tide  by  Roland  R,  Foulke,  "Con- 
st. 631.  sequential     Damages     in     Eminent 

9 — Hampden   Paint,  etc.,   Co.   v.  Domain,"    65    Univ.    of    Pa.   Law 

Springfield,  etc.,  R.  Co.,  (1878)  124  Rev.  51-66,  145-169,  258-281. 

Mass.  118.  11— Northern   Pacific    &  M.   Ry. 

10 — Profits  and  business  lost  not  Co.  v.  Forbis,  (1895)  15  Mont.  459, 
recoverable:  Jacksonville  &  S.  E.  39  Pac.  571,  48  Am.  St.  Rep.  692; 
Ry.  Co.  v.  Walsh,  (1883)  106  111.  Blake  v.  Rich,  (1856)  34  N.  H. 
253;  Whitman  v.  Boston,  etc.,  R.  282;  Penn  Gas  Coal  Co.  v,  Ver- 
Co.,  (1861)  3  Allen  (Mass.)  133;  sailles  Fuel  Gas  Co.,  (1890)  131  Pa- 
Troy  &  Boston  R,  Co.  v.  Northern  522,  19  Atl.  933. 
Turnpike  Co.,  (1852)  16  Barb.  (N.  ''Under  the  condemnatiom  the 
Y.)  100;  Cox  v.  Philadelphia,  etc.,  railroad  company  acquires  the  per- 
R.  Co.,  (1906)  215  Pa.  506,  64  Atl.  manent  and  exclusive  control  of  the 
729,  114  Am.  St.  Rep.  979.  Dam-  surface  of  the  land,  but  it  acquires 
ages  recoverable  for  injury  to  bus-  nothing  more.  It  acquires  no  title 
iness:  Missouri,  K.  &  T.  R.  Co.  v.  to  the  minerals  beneath  the  sur- 
Haines,  (1872)  10  Kan.  439  ("in-  face,  and  orf  course  no  right  to  dig 
cidental    loss");     Grand    Rapids,  beneath  the  surface  for  the  pur- 


430 


LAW  OP  DAMAGES 


taken  destroys  the  whole  value  of  the  fee,  the  measure  of 
damages  is  the  value  of  the  fee.^^ 

258.  Injuries  to  Rest  of  Tract. — The  owner  may  get 
damages  for  such  injuries  to  the  rest  of  the  same  tract  as 
are  proximate  and  certain.  This  much  is  well  settled. ^^ 
The  difficult  question  is,  ''What  is  a  tract?"  The  test 
most  frequently  applied  is  that  of  unity  of  use.^*  If  land 
used  together  is  separated  merely  by  a  line,  a  highway, 
a  railway,  or  a  canal,  it  is  nevertheless  considered  as  one 
tract. ^^  Where  contiguous  or  practically  contiguous 
pieces  of  land  are  farmed  as  one  farm,  they  are  consid- 
ered as  one  tract;  and  so  the  amount  of  damage  to  the 
whole  farm  is  considered.  But  two  entirely  separate 
pieces  of  land,  owned  by  the  same  owner,  are  not  one 
tract.i« 


pose  of  appropriating  them,  and  if 
it  should  undertake  to  do  so,  could 
be  restrained  at  the  instance  of  the 
owner  of  the  underlying  fee.  While 
the  title  to  the  minerals  underneath 
the  right  of  way  is  reserved  ex- 
clusively to  the  owner  of  the  land 
across  which  it  is  condemned,  there 
is  no  doubt  that  by  being  restricted 
from  entering  upon  it,  it  may  be 
difficult  and  expensive  for  him  to 
take  them  out;  far  more  so  than 
if  he  could  operate  directly  over 
the  land  which  has  been  appro- 
priated under  the  easement;  and 
it  may  be  that  much  valuable  min- 
eral would  have  to  be  left  to  afford 
surface-support,  or  if  this  were 
taken  out,  a  substituted  surface- 
support  would  have  to  be  provided 
by  the  owner.  But  evidence  of  all 
these  matters  would  be  submitted 
to  the  court  and  jury,  and  would 
enter  as  substantial  factors  in  de- 
termining the  value  of  the  ease- 
ment."— Southern  Pacific  E.  Co.  v. 


San  Francisco  Savings  Union, 
(1905)  146  Calif.  290,  79  Pac.  961, 
2  Ann.  Cas.  962,  70  L.  E.  A.  221, 
106  Am.  St.  Eep,  36. 

12 — Hollingsworth  v.  Des  Moines, 
etc.,  E.  Co.,  (1884)  63  la.  443,  1» 
N.  W.  325;  Eobbins  v.  St.  Paul, 
etc.,  E.  Co.,  (1875)  22  Minn.  286. 

13 — Alabama  Power  Co,  v.  Key- 
stone Lime  Co.,  (1914)  191  Ala. 
58,  67  So.  833,  Ann.  Cas.  1917  0 
878;  Young  v.  Harrison,  (1855)  17 
Ga.  30.  See  also  10  E.  C.  L.  153, 
and  cases  there  cited. 

14 — Keithsburg,  etc.,  E.  Co.,  v. 
Henry,  (1875)  79  HI.  290;  Ham  v. 
Wiscomsin,  etc.,  Ey.  Co.,  (1883)  61 
la.  716,  17  N.  W.  157. 

15 — West  Skokie  Drainage  Dis- 
trict V.  Dawson,  (1909)  243  111,  175, 
90  N.  E.  377,  17  Ann.  Cas.  776;  Eu- 
dolph  V.  Pennsylvania,  etc.,  E.  Co., 
(1898)  186  Pa.  541,  40  Atl.  1083, 
47  L.  E.  A.  782. 

16 — Kennebec  Water  District  v. 
Waterville,   (1902)    97  Me.  185,  54 


EMINENT  DOMAIN  431 

An  intenticn  of  the  taker  of  tlie  land  to  repair  damages 
does  not  mitigate.    To  hold  otherwise  would  be  unsafe.^^ 

259.  One  Recovery. — Where  part  of  a  tract  is  perma- 
nently taken  and  the  rest  is  injured,  the  owner  may  re- 
cover his  compensation,  once  for  all,  just  as  if  there  were 
no  element  but  the  taking.  '  *  In  all  cases  where  property, 
whether  it  be  lands  oi*  water-rights,  has  been  permanently 
appropriated  by  the  company  to  its  use,  the  damages  sus- 
tained are  a  unit,  and  are  recoverable  as  such,  and  not  by 
piecemeal.  "^^ 

260.  Remote,  Speculative,  or  Contingent  Damages  can- 
not be  recovered  any  more  easily  in  this  field  than  in  any 
other.  The  rules  of  proximity  and  certainty  govern,  as 
usual.^^ 

Where  the  owner  of  the  property  taken  has  a  stock  of 
goods  on  the  premises,  he  has  a  right  to  be  compensated 
for  the  diminution  in  their  value  by  reason  of  the  neces- 
sity of  immediately  tearing  them  out  and  installing  them 
elsewhere ;  but  he  is  not  entitled  to  reimbursement  for  the 
expense  of  removing  his  stock  of  goods  from  its  old  loca- 
tion to  a  new  location.^^ 

261.  Benefits. — Sometimes  the  part  of  the  tract  not 
taken  really  receives  benefits  as  well  as  damage  by  rea- 
son of  the  taking  of  the  other  part  for  public  purposes. 
Different  views  are  taken  as  to  the  setting  off  of  such 
benefits  against  damages.  The  constitutional  and  statu- 
tory provisions  and  the  judicial  interpretations  of  them, 

Ath  6,  60  L.  R.  A.  856;  Cameron  19— See  Old  Colony,  etc.,  R.  Co. 

V.   Chicago,  M.   &  St.  P.  By.   Co.,  v.  County  of  Plymouth,   (1859)   14 

(1889)  42  Minn.  75,  43  N.  W.  785.  Gray  (Mass.)    155. 

17  —  Colorado    M.    Ey.     Co.    v.  20 — St.  Louis  v.  St.  Louis,  L  M. 

Brown,  (1890)  15  Colo.  193,  25  Pac.  &  S.  Ry.  Co.,  (1916)   266  Mo.  694, 

87.  182  S.   W,   750,  Ann,  Oas.   1918  B 

18— Lehigh  Valley  R.  Co.  v.  Mc-  881. 
Farlan,  (1881)  43  N.  J.  I^w  605. 


432  LAW  OF  DAMAGES 

vary  so  greatly  that  only  a  few  general  principles  stand 
out  with  any  prominence  from  the  mass  of  conflicting 
statements  of  principles. 

Where  benefits  are  allowed  to  be  set  off  against  the 
damages,  the  weight  of  authority  is  as  follows:  ''The 
benefits  to  be  considered  and  allowed  by  the  jury,  where 
only  a  part  of  an  entire  tract  is  taken,  are  not  such  as  are 
common  to  lands  generally  in  the  vicinity,  but  such  as 
result  directly  and  peculiarly  to  the  particular  tract  in 
question ;  as,  for  instance,  where  property  is  made  more 
available  and  valuable  by  opening  a  street  through  it,  or 
w^hen  land  is  drained  or  otherwise  directly  improved.  So 
*  *  *  if  any  part  of  the  meadow  not  taken,  bordering 
on  the  overflowed  land,  is  benefited,  or  if  the  property  is 
directly  made  more  available  for  practical  and  advan- 
tageous use  and  enjoyment  by  the  improvement.  *  *  * 
But  remote  or  speculative  benefits,  in  anticipation  of  a 
rise  in  property  for  townsite  purposes,  or,  generally,  by 
reason  of  the  proposed  improvement  of  a  water  power 

and  the  erection  of  mills  in  the  vicinity,  cannot  be  consid- 
ered." 21 

CASE  ILLUSTRATIONS 

1.  A  city  instituted  proceedings  to  condemn  land  for  the  open- 
ing of  a  street  through  A's  agricultural  land,  which  was  so 
situated  as  to  be  available  for  platting  into  city  lots.  "The  court 
told  the  jury  that  speculative  damages  were  not  to  be  allowed, 
and  in  determining  the  value  of  the  land  they  should  not  take 
into  consideration  what  it  might  be  worth  at  some  remote  and 
future  time,  when  it  might  be  used  for  some  other  purpose ;  that 
in  determining  the  value  of  the  land  taken  they  were  to  be  gov- 
erned by  the  fair  market  value  at  the  time  it  was  taken,  for  any 
purpose  for  which  it  might  reasonably  be  used  in  the  immediate 
future ;  that  if  the  present  value  was  enhanced,  by  reason  of  its 

21— Whitely   v.   Mississippi  Wa-       v.  Fitchburg  R.  Co.,  (1849)  4  Gush, 
ter  Power  Co.,  (1888)  38  Minn.  523,       (Mass.)  291. 
38  N.  W.  753.     Accord:  Meacham 


EMINENT  DOMAIN  433 

adaptability  to  some  use  to  which  it  might  be  put  in  the  near 
future,  was  so  situated  that  it  might  be  platted  into  city  lots, 
and  that  its  present  value  was  thereby  increased,  such  increase 
was  a  proper  ground  of  assessment  of  damages ' ;  that  *  the  a<!tual 
use  to  which  it  is  put  must  also  be  considered  with  the  surround- 
ing circumstances ;  that  you  are  not  to  include  remote  or  specu- 
lative values,  but  only  the  value  of  the  land  when  taken,  with 
reference  to  its  availability  for  any  purpose  to  which  it  might 
reasonably  be  put';  that  they  should  'not  take  into  consideration 
what  it  might  be  worth  at  some  remote  and  future  time,  when  it 
might  be  put  on  the  market  as  lots,  but  you  may  consider  its 
present  value  for  such  purposes.'  "  This  is  a  correct  instruc- 
tion.22 

2.  A  railroad  company  takes  part  of  A's  lots,  cutting  off  the 
rest  from  tidewater.  The  damage  accruing  to  these  adjoining 
lots  not  taken,  is  a  proper  element  to  be  considered  by  the  jury.^s 

3.  A  railroad  is  run  through  an  80-acre  field,  which  is  part 
of  a  240-acre  farm.  Held,  that  the  farm  is  the  tract  damaged 
by  the  taking,  and  that  damages  must  be  assessed  for  the  injury 
to  the  whole  farm,  as  it  was  connected  and  used  together.^^ 

4.  A  county  laid  out  a  public  highway  across  a  railroad  com- 
pany's tracks.  The  owners  of  the  railroad  ''are  entitled  to  re- 
cover damages  for  taking  their  land  for  the  purposes  of  a  high- 
way, subject,  however,  to  its  use  as  a  railroad ;  for  the  expense  of 
erecting  and  maintaining  signs  required  by  law  at  the  crossing ; 
for  making  and  maintaining  cattle  guards  at  the  crossing,  if 
necessary ;  and  for  the  expense  of  flooring  the  crossing,  and  keep- 
ing the  planks  in  repair."  No  damages  can  be  allowed  for 
increased  liability  to  damage  from  accident  from  collision  and 
otherwise,  by  reason  of  the  laying  out  of  the  highway  at  grade 
over  their  track,  or  for  increased  expense  for  ringing  a  bell  as 
required  by  law,  or  for  liability  of  being  ordered  by  county 
commissioners  to  build  a  bridge  for  the  highway  over  the  rail- 
road track.25 

22 — Alexian    Bros.    v.    Oshkosh,  25 — Old  Colony,  etc.,  E.   Co.   v. 

(1897)   95  Wis.  221,  70  N.  W.  162.       County    of    Plymouth,    (1859)     14 

23 — Drury    v.    Midland    R.    Co.,      Gray  (Mass.)   155. 
(1879)    127   Mass.  571. 

24 — Keithsburg,    etc.,   R.    Co.    v. 
Henry,   (1875)    79  HI.  290. 
Bauer  Dam. — 28 


434  LAW  OF  DAMAGES 

5.  The  railroad  of  the  C  Co.,  which  takes  a  right  of  way  acro^ 
P's  land,  crosses  the  A  Go's  railroad  at  a  corner  of  P's  tract, 
the  crossing  making  the  tract  more  valuable  than  ever.  Below, 
P  was  compensated  only  for  the  land  actually  taken,  no  dam- 
ages being  given  for  injury  to  the  rest  of  the  tract.  Affirmed. 
Special  benefits  may  be  set  off  against  damage  to  remaining 
part.28 

26— Page   v.   Chicago,  M.   &  St. 
P.  Ry.  Co.,  (1873)   70  lU.  324. 


PART  VI 

MODERN  LEGISLATION  RELATING  TO  WORKERS 
INJURED  IN  INDUSTRIES 

CHAPTER  LV 

Employers'  Liability  and  Workmen's  Compensation. 

262.  Difference  Between  Employers'  Liability  and 
Workmen's  Compensation. — Employers'  liability  and 
workmen 's  compensation  are  so  often  popularly  confused 
with  each  other  that  it  seems  necessary  to  begin  our  study 
with  a  statement  of  the  difference  between  the  two  terms. 
Employers'  liability  legislation  modifies  the  common  law 
basis  of  liability  of  an  employer  for  injuries  suffered  by 
his  employee  or  substitutes  for  it  a  new  basis  of  liability. 
Such  legislation  may  undertake  to  change  the  rules  of  lia- 
bility as  between  all  employers  and  their  employees,  or  it 
may  aim  only  at  such  employers  as  do  not  elect  to  place 
themselves  under  the  operation  of  a  state  plan,  laid  out 
in  the  same  statute  or  in  another  statute,  under  which 
plan  some  form  of  workmen's  compensation  is  provided 
for  the  employees  of  such  employers  as  accept  it.^ 

Employers'  liability  legislation  merely  changes  the 
rules  for  determining  the  rights  of  private  individual 
against  private  individual.  The  obvious  purpose  of  such 
legislation  is  to  impose  certain  rules  of  conduct  and  there- 
fore certain  duties  upon  the  employer  and  to  give  the 
employee  rights  commensurate  with  such  duties. 

The  purpose  of  workmen's  compensation  is,  not  so 
much  to  give  a  private  right,  but  rather  so  to  organize 

1— E.  g.,  see:  N.  J.  Laws  1911,      nois  Act  of  1911,  Sec.  1,  Labatt's 
Chap.    95,    Sec.    II,    §7,    Labatt's       Master  and  Servant,  p.  5533. 
Master  and  Servant,  p.  5594;  Illi- 

435 


436 


Law  of  damages 


industrial  society  that  injuries  to  employees,  even  when 
not  caused  by  any  breach  of  duty  on  the  part  of  the  em- 
ployer, shall  not  be  borne  by  the  employee  alone,  but 
partly,  at  least,  by  the  industry .^ 

263.  Employers'  Liability  Legislation. — Under  the 
common  law,  according  to  the  interpretation  that  had 
come  to  be  well  fastened  upon  it  a  half  century  ago,  it 
was  probably  impossible  for  a  majority  of  employees  to 
recover  damages  for  injuries  inflicted  upon  them,  either 


2 — '"The  body  of  law  involved 
in  the  law  of  torts  and  employers' 
liability  statutes  pertains  entirely 
to  the  redress  of  private  wrongs. 
In  such  instance,  liability  results 
in  the  payment  of  damages  to  the 
employee  intended  to  be  com- 
mensurate with,  and  to  reimburse 
him  for,  the  injury  suffered.  Such 
law  has  for  its  sole  object  and  end 
the  regulating  of  private  rights. 
•  *  *  The  obligations,  on  the 
other  hand,  of  industrial  insurance 
and  workmen 's  compensation  accrue 
from  contingencies  not  dependent 
upon  or  within  the  control  of  the 
parties,  and  thus  have  no  relation 
whatever  to  the  conduct  of  the 
parties;  hence  these  obligations  are 
not  based  on  wrongs.  It  follows, 
then,  that  they  must  pertain  to  the 
subject  of  government  regulations, 
and  are  in  the  nature  of  economic 
provisions,  taking  the  form  of  in- 
direct taxation  levied  to  regulate 
occupations,  for  on  what  other 
basis  would  the  government  be  jus- 
tified in  writing  into  the  labor 
contract,  against  the  will  of  the 
parties,  an  insurance  policy?  Were 
this  not  so,  indQstrial  insurance  or 
workmen's  compensation  would  be, 
from  the  standpoint  of  both  the 
employee  and  the  employer,  with- 


out basis  of  justice  or  equity;  for 
the  theory  of  such  laws  is  that 
compensation  is  not  to  be  commen- 
surate with  injury,  but  is  to  be 
based  upon  wages,  thus  substitut- 
ing for  the  former  obligations 
based  upon  tort,  which  offered 
damages  commensurate  with  injury, 
a  purely  arbitrary  sum.  Such  a 
scheme  can  have  no  relation  to  the 
adjustment  of  private  wrcTngs.  If 
it  be  justifiable,  it  must  be  on  the 
sociological  theory  of  the  right  of 
the  State  to  levy  a  tax  for  the 
purpose  of  protecting,  from  an 
economic  standpoint,  the  commu- 
nity as  a  whole." — Robert  J. 
Gary's  Brief  on  the  Power  of  Con- 
gress in  Eespect  of  Industrial  In- 
surance, p.  51,  quoted  by  Smith,  J., 
in  Cunningham  v.  North  Western 
Improvement  Co.,  (1911)  44  Mont. 
180,  119  Pac.  554,  1  N.  C.  C.  A. 
720. 

"Liability  under  the  compensa- 
tion acts  is  based  on  contract,  and 
the  right  to  compensation  arises 
ex  contractu.  In  theory,  it  is  a 
form  of  industrial  insurance,  the 
burden  of  industrial  accidents  be- 
ing placed  upon  the  industry  rather 
than  upon  the  workman." — Suth. 
Dam.  4th  ed.  §  1303. 


EMPLOYERS'  LIABILITY  4^3^ 

negligently  or  otherwise,  in  the  course  of  their  employ- 
ment. This  deficiency  of  the  law  was  a  fruitful  source  of 
poverty  and  distress.  The  doctrines  of  fellow-servant, 
assumed  risk,  and  contributory  negligence  effectually 
barred  a  large  number  of  actions  by  employees.  Employ- 
ers'  liability  statutes  have,  in  varying  degree,  modified 
or  abolished  these  defenses.  Some  of  the  statutes  have 
greatly  reduced  the  number  of  cases  to  which  the  fellow- 
servant  rule  is  applicable,  by  extending  the  doctrine  of 
vice-principal  so  as  to  make  the  acts  of  many  of  the  more 
important  employees  the  acts  of  the  principal;  while 
other  statutes  have  entirely  abolished  the  fellow-servant 
rule.  The  doctrine  of  assumed  risk  has  also  been  modi- 
fied and  restricted  in  its  operation.  Contributory  negli- 
gence has  been  greatly  lessened  in  importance  as  a  de- 
fense by  these  statutes,  of  which  some  go  so  far  as  to 
abolish  it  as  a  defense  in  a  suit  by  an  employee  against 
his  employer.^  Another  reform  introduced  by  these  stat- 
utes is  the  holding  of  the  employer  to  a  much  higher  de- 
gree of  care  than  that  required  by  the  common  law.  Cer- 
tain safety  devices  are  required  by  some  of  the  statutes. 

264.  Federal  Employers'  Liability  Statute  as  to  Com- 
mon Carriers. — The  federal  statute  providing  for  liability 
of  interstate  common  carriers  to  their  employees  for  in- 
juries, provides  as  follows:  ** Every  common  carrier  by 
railroad,  etc.,  shall  be  liable  in  damages  to  any  person 
suffering  injury  while  he  is  employed  by  such  carrier  in 
such  commerce,  or,  in  case  of  the  death  of  such  employee, 
to  his  or  her  personal  representative,  for  the  benefit  of 
the  surviving  widow  or  husband  and  children  of  such  em- 
ployee; and,  if  none,  then  of  such  employee's  parents; 
and,  if  none,  then  of  the  next  of  kin  dependent  upon  such 
employee,  for  such  injury  or  death  resulting  in  whole  or 

3 — American  Employers'  Liabil-  1880.  For  the  text  of  a  number  of 
ity  Acts  are  modeled  after  the  Eng-  such  acts,  see  Labatt  's  Master  and 
lish   Employers'   Liability   Act    of      Servant,  §1656  et  seq. 


438  LAW  OF  DAMAGES 

in  part  from  the  negligence  of  any  of  the  officers,  agents, 
or  employees  of  such  carrier,  or  by  reason  of  any  defect 
or  insufficiency,  due  to  its  negligence,  in  its  cars,  engines, 
appliances,  machinery,  track,  roadbed,  works,  boats, 
wharves,  or  other  equipment. ' '  ^ 

As  to  measure  of  damages  in  cases  of  injuries  to  em- 
ployees of  interstate  carriers,  the  federal  statute  super- 
sedes all  state  statutes.^ 

265.  Negligfence. — ^Federal  and  state  employers*  liabil- 
ity acts  place  upon  employers  larger  duties  of  care  for  the 
safety  of  their  employees  than  were  imposed  upon  them 
by  the  common  law.  As  the  duty  of  care  is  enlarged,  and 
negligence  is  a  failure  to  conform  to  one's  duty,  the  field 
of  negligence  is  broadened  by  liability  acts.  Under  em- 
ployers' liability  acts,  liability  is  based  upon  the  negli- 
gence of  the  employer.® 

266.  Contributory  Negligence  Under  Federal  Statute. 
— Where  the  employee  has  been  guilty  of  negligence  con- 
tributing to  his  injury,  such  contributory  negligence  does 
not  defeat  his  recovery  under  the  Federal  Employers' 
Liability  Law  already  alluded  to,  but  merely  diminishes 

4 — U.     S.      Comp.     Stat.     1916,  only  of  compensation  to  the  speei- 

§  8657.      Notice   the   difference   be-  fied   classes    of   relatives.      No   re- 

tween  this  and  some  state  statutes,  corvery  can  be  had  if  relatives  of 

See  Horton  v.  Seaboard  Air  Line  such  classes  do  not  exist.    In  a  suit 

Ey.   Co.,    (N.   Car.   1918)    95  S.  E.  brought  under  the  federal  statute, 

883,  16  N.  C.  C.  A.  724  (729).  Here  the  jury  must  find  separately,  "as 

it  is  seen  that,  under  some  state  to    each   plaintiff,   what    pecuniary 

statutes,  "the  damages  are  based  benefit    each    plaintiff    had    reason 

upon  the  present  worth  orf  the  net  to  expect  from  the  continued  life 

pecuniary  value  of  the  life  of  the  of  the  deceased." 
deceased."       Under     the     federal  5 — Chicago,  R.  I.  &  P.  Ry.  Co.  v. 

statute,    the    damages    are    based  Devine,  (1915)  239  TJ.  S.  52,  60  L. 

upon  the  pecuniary  loss  sustained  ed.  140,  36  Sup.  Ct.  27. 
by  relatives  of  certain  classes,  who  6 — Seaboard    Air    Line    Ry.    v. 

would  have  been  benefited  by  the  Horton,    (1914)    233   U.   S.  492,  58 

continuance  of  the  life  of  the  de-  L.  ed.  1062,  8  N.  C.  C.  A.  834. 
ceased,  so  that  recovery  can  be  had 


EMPLOYERS'  LIABILITY  439 

his  damages  in  proportion  to  the  amount  of  his  negli- 
gence.'' 

Where,  however,  the  employee's  negligence  is  the  sole 
cause  of  the  injury,  there  can  be  no  recovery  under  the 
act.  But  it  must  be  noticed,  in  this  connection,  that  the 
staT;ute  provides  for  a  recovery  for  an  injury  or  death 
resulting  in  whole  or  in  part  from  the  negligence  of  any 
of  the  officers,  agents,  or  employees  of  such  carrier.^ 

267.  Distinction  Between  Contributory  Negligence  and 
Assumption  of  Risk. — At  common  law,  either  the  con- 
tributory negligence  of  the  plaintiff  or  the  assumption  of 
risk  by  him  defeated  his  right  to  recover,  so  that  it  was 
to  little  purpose  to  speculate  upon  fine  distinctions  be- 
tween the  two.  But,  under  the  Federal  Employers'  Lia- 
bility Act,  it  becomes  highly  necessary  to  distinguish  be- 
tween them;  for  the  act  takes  away  the  defense  of  con- 
tributory negligence,  while  recognizing  that  of  assumed 
risk,  except  in  cases  wherein  a  federal  statute  for  the  pro- 
motion of  the  safety  of  employees  is  violated  by  the  em- 
ployer.^ 

Contributory  negligence  is  a  neglect  or  breach  of  duty 
by  the  employee  in  regard  to  his  own  self-preservation  or 
personal  safety.  Assumption  of  risk  is  not  grounded  in 
negligence  of  the  employee,  contributory  or  otherwise. 
The  employee  is  considered  as  having  assumed  all  such 
risks  as  one  may  reasonably  suppose  to  be  within  the 
contemplation  of  the  employee  as  incident  to  the  kind  of 
work  in  which  he  engages. ^° 

7— Act  of  April  22,  1908,  Section  Central   Ry.    Co.,    (S.   Dak.    1915) 

3;  35  IT.  S.  Stat.  L.  65,  c.  149;  U.  155  N.  W.  3,  and  other  cases.     See 

S.  Ann.  Stat.  §8659;  Kippenbrock  notes,   3   N.   C.   C,  A.   806,   and   3 

V.  Wabash  R.  Co.,  (1917)  270  Ma.  N.  C.  C.  A.  812. 

479,  194  S.  W.  50,  16  N.  C.  C.  A.  9— Suth.  Dam.  4th  ed.  §  1325. 

790.  10— Suth.    Dam.    4th    ed.    §  1325, 

8 — ^Federal  Employers'  Liability  citing    Seaboard   Air   Line   Ry.    v. 

Act,  U.  S.  Ann.  Stat.  1916,  §§  8657-  Horton,    (1914)    233  U.  S.  492,  58 

8665;    Suth.   Dam.   4th   ed.   §1326,  L.  ed.  1062,  8  N.  C.  C.  A.  834. 
piling   Fletcher   v.   South    Dakota 


440  LAW  OF  DAI\IAGES 

268.  Elements  of  Damages  for  Personal  Injuries.— 
Under  employers'  liability  acts,  as  at  common  law,  the 
plaintiff  employee  can  recover  for  diminution  of  earning 
power,  physical  pain,  mental  suffering,  and  nervous 
shock.  As  at  common  law,  only  those  elements  of  future 
damage  are  recoverable  which  may  be  proved  with  rea- 
sonable certainty.  Elements  that  are  uncertain,  specula- 
tive, or  remote,  are  of  course  not  recoverable.^^ 

269.  Measure  of  Damages  for  Death. — Employers* 
liability  acts  in  providing  an  action  in  favor  of  certain 
dependents,  in  the  event  of  the  employee's  death  by  rea- 
son of  injuries  inflicted  by  the  negligence  of  the  employer, 
aim  at  the  assessment  of  such  an  amount  of  damages  as 
will  compensate  the  dependent  for  the  pecuniary  loss  oc- 
casioned by  the  death  of  the  employee.  Here,  as  in  the 
case  of  a  permanent  diminution  of  earning  power  at  com- 
mon law,  it  must  be  borne  in  mind  that  the  amounts  which 
the  deceased,  had  he  lived,  would  have  earned  and  paid 
to  the  dependent,  would  have  been  paid  periodically,  and 
not  in  a  lump,  while  the  damages  are  paid  in  one  lump 
practically  immediately.  For  this  reason,  the  total  sum 
of  the  amounts  that  the  deceased  would  have  contributed 
to  the  support  of  the  dependent,  do  not  constitute  the 
measure  of  damages.  Only  the  present  worth  of  such 
sums,  minus  the  probable  personal  expenses  of  the  de- 
ceased, can  properly  be  assessed  as  damages.^^ 

These  acts  provide  damages  for  pecuniary  loss  only,  al- 
lowing nothing  as  a  balm  for  the  feelings.  They  compen- 
sate for  loss  of  maintenance  and  support,  but  not  for 
**care"  or  ''advice"  of  a  deceased  husband,  where  such 
"care"  and  "advice"  is  not  shown  by  the  pleading  and 
proof  to  be  of  pecuniary  value.^^ 

11— Suth.   Dam.    4th    ed.   §1331,  S.  W.  83.     See  6  N.  C.  C.  A.  447 

and  cases  there  cited.  note. 

12 — Kansas  City  Southern  E.  Co.  13 — Michigan   Central  E.   Co.   v. 

V.  Leslie,  (1914)  112  Ark.  607,  167  Vreeland,  (1913)   227  U.  S.  59,  57 


WORKMEN'S  CODklPENSATION  441 

270.  Proximate  Cause. — The  mere  fact  that  the  em- 
ployer has  violated  some  safety  provision  of  an  employ- 
ers' liability  act,  does  not  render  him  liable  in  damages 
for  any  injury  that  his  employee  may  suffer,  whether 
there  be  a  proximity  of  causal  connection  between  the  vio- 
lation and  the  injury,  or  not.  The  statutory  negligence 
of  the  employer  must  be  the  proximate  cause  of  the  injury 
to  the  employee,  or  there  is  no  cause  of  action.^* 

The  plaintiff  cannot  recover  for  remote  or  speculative 
elements  of  damage.^^ 

271.  Workmen's  Compensation  is  a  kind  of  industrial 
insurance,  prescribed  by  statute  and  varying  in  different 
states  as  to  the  amounts  to  be  paid  for  different  injuries 
under  different  circumstances.  The  compensation  is  gen- 
erally ma^e  large  or  small,  according  to  the  nature  of  the 
injury  and  the  amount  of  the  wages  being  received  by  the 
employee  injured.  Workmen's  compensation  is  largely  a 
definite,  cut-and-dried  matter,  having  as  one  of  its  chief 
aims  the  prevention  of  litigation  and  the  substitution  of 
certainty  of  amount  of  compensation  for  the  age-long  un- 
certainty as  to  the  amount  of  damages  an  injured  em- 
ployee will  receive  in  an  action  at  common  law.  The 
compensation  is  commonly  awarded  by  a  mere  adminis- 
trative board,  with,  the  avowed  purpose  of  preventing 
large  expenditures  for  lawyers'  fees  and  court  costs. 
The  operation  of  the  law  is  usually  supposed  to  be  *' auto- 
matic," and  generally  it  is  about  as  automatic  in  its 
workings  as  is  an  accident  insurance  policy.  The  statute 
commonly  states  a  percentage  of  the  wages  for  a  certain 
time,  to  be  paid  in  the  event  of  a  certain  kind  of  injury.^' 

L.  ed.  417,  33  Sup.  Ct.  192;  New  14— St.  Louis,  I.  M.  &  S.  Ey.  Co. 

York   Central   E.    Co.   v.   Winfield,  v.    iNIcWhirter,    (1913)    229    U.    S. 

(1917)    244   TJ.   S.    147,   61    L.    ed.  265,  57  L.  ed.  1179,  33  Sup.  Ct.  858. 

1045,  37  Sup.  Ct.  546.  15— Chicago,  M.  &  St.  P.  E.  Co. 

This    construction    follows    that  v.  Lindeman,  (1906)   143  Fed.  946, 

placed  upon  Lord  Campbell's  Act  75  C.  C.  A.  18. 

and  similar  statutes.  16— Strictly  speaking,  compensa- 


442 


LAW  OF  DAMAGES 


272.  The  Basis  of  the  Right  to  Workmen's  Compensa- 
tion.— The  right  of  a  workman  to  compensation,  being  in- 
dependent of  any  question  of  tortious  wrong  by  the  em- 


tion  allowed  a  workman  under  a 
workmen's  compensation  act,  is  not 
"damages"  at  all,  as  the  amount 
of  compensation  depends  merely 
upon  certain  more  or  less  arbitrary 
criteria,  while  the  amount  of  dam- 
ages depends,  in  general,  upon  the 
amount  of  damage  done.  "The 
term  '  damages '  means  the  recovery 
allowed  in  an  action  at  law  as  con- 
trasted with  compensation  under 
this  act." — California  Workmen's 
Compensation  Act  of  1917,  Cali- 
fornia Stat.  1917,  Chap.  586,  Sec. 
3,  §5. 

The  following  extracts  from  the 
New  Jersey  statute  serve  to  illus- 
trate: "Following  is  the  schedule 
ot  compensation:  (a)  Schedule  of 
payments.  Temporary  disability. 
Proviso.  For  injury  producing 
temporary  disability,  50  per  cen- 
tum of  the  wages  received  at  the 
time  of  injury,  subject  to  a  maxi- 
mum compensatiorn  of  $10  per  week 
and  a  minimum  of  $5  per  week; 
Provided,  that,  if  at  the  time  of 
injury  the  employee  receives  wages 
of  less  than  $5  per  week,  then  he 
shall  receive  the  fuU  amount  of 
such  wages  per  week.  This  com- 
pensation shall  be  paid  during  the 
period  of  such  disability,  not,  how- 
ever, beyond  three  hundred  weeks, 
(b)  Complete  disability.  Proviso. 
For  disability  total  in  character 
and  permanent  in  quality,  50  per 
centum  of  the  wages  received  at 
the  time  of  injury,  subject  to  a 
maximum  compensation  of  $10  per 
week  and  a  minimum  of  $5  per 
week;  Provided,  that  if  at  the  time 
of    injury    the    employee    receives 


wages  of  less  than  $5  per  week, 
then  he  shall  receive  the  full 
amount  of  wages  per  week.  This 
compensation  shall  be  paid  during 
the  period  of  such  disability,  not, 
however,  beyond  four  hundred 
weeks,  (c)  Partial  disability.  For 
disability  partial  in  character  but 
permanent  in  quality,  the  compen- 
sation shall  be  based  upon  the  ex- 
tent of  such  disability.  In  cases 
included  by  the  following  schedule 
the  compensation  shall  be  that 
named  in  the  schedule,  to  wit: 

Thumb.  For  the  loss  of  a  thumb, 
50  per  centum  of  daily  wages  dur- 
ing sixty  weeks. 

First  finger.  For  the  loss  of  a 
first  finger,  commonly  called  index 
finger,  50  per  centum  of  daily 
wages    during   thirty-five   weeks. 

Hand.  For  the  loss  of  a  hand,  50 
per  centum  of  daily  wages  during 
one  hundred  and  fifty  weeks. 

Basis  of  computation  in  case  of 
death.  In  case  of  death  compen- 
sation shall  be  computed  but  not 
distributed  on  the  following  basis: 

(1)  Actual  dependents. 

If  orphan  or  orphans,  a  minimum 
of  25  per  centum  of  wages  of  de- 
ceased, with  10  per  centum  addi- 
tional for  each  orphan  in  excess 
of  two,  with  a  maximum  of  50  per 
centum. 

If  widow  alone,  25  per  centum  of 
wages. 

If  widow  and  one  child,  40  per 
centum   of   wages.     •     •     * 

Distribution  of  compensation  in 
case  of  death.  Compensation  in 
case  of  death  shall  be  computed  on 


WORKMEN'S  COMPENSATION 


443 


ployer,  rests  upon  a  contractual  relation  between  employ- 
er and  employee.^  ^  Any  employer  who  employs  labor 
under  the  operation  of  a  workmen's  compensation  act 
impliedly  agrees  to  insure  his  employees  against  injuries, 
in  such  amounts  as  are  prescribed  by  the  statute. 

273.  Negligence  of  Employer  of  No  Effect  in  Determin- 
ing Whether  Employee  Be  Compensated. — The  right  of 
the  employee  to  compensation,  under  acts  providing  for 
workmen's  compensation,  does  not  depend  upon  the  negli- 
gence of  the  employer ;  nor,  under  the  usual  provisions  of 
the  statute,  does  contributory  negligence  not  amounting 
to  wilful  misconduct  bar  the  right  of  the  employee  to  re- 
cover compensation.^® 

274.  Scope  of  Employment — ^What  Acts  Are  Within  the 
Employment  and  What  Injuries  Are  Held  to  Have  Re- 
sulted from  it — "Accident."  ^^ — Compensation  is  com- 


the  basis  of  the  foregoing  sched- 
ule, but  shall  be  distributed  ac- 
cording to  the  laws  of  this  state 
providing  for  the  distribution  of 
the  personal  property  of  an  intes- 
tate decedent,  unless  decedent  has 
in  fact  left  a  will. 

(2)   No  dependents. 

Sickness  and  burial.  Expense  of 
last  sickness  and  burial  not  ex- 
ceeding $200. 

17 — Dettloff  V.  Hammond,  etc., 
Co.,  (Mich,  1917)  161  N.  W.  950, 
14  N.  C.  C.  A.  901. 

18— Archibald  v.  Ott,  (1916)  77 
W.  Va.  448,  87  S.  E.  791,  L.  R.  A. 
1916 D    1013. 

19 — On  the  subject  in  general, 
see:  Nisbet  v.  Rayne  &  Burn, 
[1910]  2  K.  B.  689,  3  N.  C.  C.  A. 
268;  Dietzen  Co.  v.  Industrial 
Board,  (1917)  279  111.  11,  116  N. 
E.  684,  14  N.  C.  C.  A.  125;  Ohio, 
etc.,  Vault  Co.  v.  Industrial  Board, 


(1917)  277  111.  96,  115  N.  E.  149, 
14  N.  C.  C.  A.  224;  In  re  McNicol, 
(1913)  215  Mass.  497,  102  N.  E. 
697,  4  N.  C.  C.  A.  522;  Pigeon  v. 
Employers '  Liability  Assurance 
Corp.,  Ltd.,  (1913)  216  Mass.  51, 
102  N.  E.  932,  4  N.  C.  C.  A.  516; 
Milliken  v.  A.  Towle  &  Co.,  (1914) 
216  Mass.  293,  103  N.  E.  898,  4 
N.  C,  C.  A.  512.  See  also  im- 
portant note  on  "Time,  Place  or 
Particular  Manner  of  Injury  or 
Death  as  Affecting  Question 
whether  Accident  arose  out  of  and 
in  Course  of  Employment,"  16  N. 
C.  C.  A.  879. 

"The  basis  of  recovery  under 
the  Workmen's  Compensation  Act 
is  that  the  injury  be  proximately 
caused  by  the  accident  and  is 
not  intentionally  self-inflicted." — 
Frint  Motorcar  Co.  v.  Industrial 
Commission,  (Wis.  1919)  170  N. 
W.  284. 


444 


LAW  OF  DAMAGES 


monly  provided  only  for  injuries  resulting  from  accidents 
arising  **out  of  and  in  the  course  of  the  employment." 
The  purpose  of  such  provision  is  that  compensation  shall 
be  given  to  the  employee  only  for  injuries  resulting  from 
risks  reasonably  incident  to  the  employment.  If  an  in- 
jury occurs  while  an  employee  is  doing  what  a  man  in 
such  employment  may  reasonably  do  during  the  time  in 
which  he  is  employed,  and  at  a  place  where  he  may  rea- 
sonably be  at  such  time,  he  has  a  right  to  compensation.*** 

Every  employee  must  of  necessity  do,  in  the  course  of 
his  employment,  many  acts  which  do  not  relate  directly 
to  his  work.  Among  such  acts  are  all  those  things  done 
which  are  strictly  personal  to  himself,  ministering  to  the 
sustenance  of  his  life  and  to  his  necessary  comfort  during 
the  hours  of  work.^* 

In  England,  compensation  is  refused  where  the  injury 
has  resulted  from  a  sportive  act  of  a  fellow  worker;** 


20— Fitzgerald  v.  Clarke  &  Son, 
[1908]  2  K.  B.  796,  77  L.  J.  K.  B. 
1018. 

21 — "A  man  must  breathe  and 
occasionally  drink  water  while  at 
work.  In  these  and  other  conceiv- 
able instances  he  ministers  unto 
himself,  but  in  a  remote  sense 
these  acts  contribute  to  the  fur- 
therance of  the  work.  *  *  * 
That  such  acts  will  be  done  in  the 
course  of  employment  is  necessar- 
ily contemplated,  and  they  are  in- 
evitable incidents.  Such  dangers 
as  attend  them,  therefore,  are  in- 
cident dangers.  At  the  same  time 
injuries  occasioned  by  them  are 
accidents  resulting  from  the  em- 
ployment. ' '  —  Archibald  v.  Ott, 
(1916)  77  W.  Va.  448,  87  S.  E.  791, 
L.  R.  A.  1916  D  1013,  citing: 
Vennen  v.  New  Dells  Lumber  Co., 
(1915)  161  Wis.  370,  154  N.  W. 
640,  L.  R.  A.  1916  A  273;  Zabriskie 
Y,  Erie  R.  Co.,  (1913)  85  N.  J.  L. 


157,  88  Atl.  824,  4  N.  C.  C.  A.  778. 

See  comprehensive  note,  "In- 
jury to  Employee  during  Perform- 
ajice  of  Act  for  Own  Purpose  or 
Convenience  as  Resul+ing  from  Ac- 
cident Arising  out  of  and  in  Course 
of  Employment,"  12  N  C.  C.  A. 
891.  For  a  long  list  of  various  acts 
which  have  been  held  to  be  in  the 
''course  of  employment,"  see  Grif- 
fith v.  Cole  Bros.,  (la.  1917)  165 
N.  W.  577,  15  N.  C.  C.  A.  674  and 
note. 

"The  test  seems  to  be  whether 
deceased  'though  actually  through 
with  the  work,  was  still  within  the 
sphere  of  the  work,'  was  doing 
what  'a  man  so  employed  may 
reasonably  do  within  a  time  during 
which  he  is  employed,  and  at  a 
place  where  he  may  reasonably  be 
during  that  time.'  "—7  N.  C.  C.  A. 
409  note. 

22 — Fitzgerald  v.  Clarke  &  Son, 
[1908]  2  K.  B.  796,  1  B.  W.  C.  197, 


WORKMEN'S  COMPENSATION  445 

but,  in  the  United  States,  compensation  has  sometimes 
been  allowed  in  such  cases,  the  injury  being  treated  as 
having  arisen  out  of  and  in  the  course  of  the  employ- 
ment.^^ Sportive  acts  among  employees  are  so  common 
that  it  would  seem  that  such  acts  may  well  be  held  to  be 
within  the  contemplation  of  the  parties  to  a  contract  of 
employment  and  within  the  intention  of  the  legislature  in 
enacting  a  workmen's  compensation  law.  As  has  been 
said  before,  compensation  is  not  a  matter  of  liability  for 
negligence  or  for  wilful  wrong;  it  is  rather  a  matter  of 
making  the  industry,  instead  of  the  worker,  pay  for  in- 
juries arising  from  risks  incident  to  the  industry.  It  is 
submitted  that  the  American  view  is  the  better. 

The  infliction  of  injuries  upon  an  employee  by  means 
of  nervous  shock  has  been  held  to  give  a  right  of  com- 
pensation. Where  a  fatal  accident  occurred  to  one  em- 
ployee, and  a  fellow  workman  under  the  same  employer 
went  to  his  rescue,  thereby  sustaining  a  serious  nervous 
shock,  so  that  he  was  no  longer  able  to  work,  the  fellow 
workman  who  had  sustained  only  a  nervous  shock  was 
held  entitled  to  compensation.^^  But  this  is  not  so  where 
the  nervousness  is  such  as  can  be  overcome  by  a  genuine 
effort  to  work.  Malingering  gives  no  workman  a  right  to 
compensation.^^ 

Occupational  diseases  are  not  compensated  for,  unless 
expressly  mentioned  in  the  statute.^^ 

"Accident,"  as  used  in  compensation  acts,  has  a  broad 
meaning,  such  as  is  popularly  given  the  word;  that  is,  it 
is  used  in  the  common,  everyday,  colloquial  sense  and  not 
strictly .2^    An  accident,  in  this  sense,  is  merely  **an  un- 

99  L.  T.  Eep.  101,  77  L.  J.  K.  B.  Collieries,    [1910]    2   K.  B.   538,   3 

1018;    Suth.   Dam.   4th   ed.    §  1380,  N.  C.  C.  A.  225. 

and  cases  there  cited.  25 — See  3  N.  C.  C.  A.  229,  note. 

23  — Hulley      v.       Moorsbrugger,  26 — Suth.    Dam.    4th   ed.    §1378; 

(1915)  87  N.  J.  L.  103,  93  Atl.  79,  Miller  v.   American   Steel   &  Wire 

8  N.  C.  C.  A.  283,  and  N.  C.  C.  A.  Co.,   (1916)   90  Conn.  349,  97  Atl. 

note.  345. 

24— Yates  v.  South  Kirkby,  etc.,  27— Fenton   v.   Thomley   &   Co., 


446  LAW  OF  DAMAGES 

looked-for  mishap  or  untoward  event  which  is  not  ex- 
pected or  designed.  "2® 

The  question  whether  an  "accident'*  is  the  cause  of  an 
injury  is  a  mixed  question  of  law  and  of  fact ;  ^^  but,  when 
the  facts  are  ascertained,  it  is  a  question  of  law.^° 

275.  Referring  Disability  to  Original  Injury. — A  disa- 
bility occasioned  by  a  second  injury  can  be  referred  to 
the  first,  if  it  can  properly  be  considered  a  proximate 
result  of  the  first  injury .^^ 

276.  Amount  of  Compensation. — In  arriving  at  the 
amount  of  compensation,  one  must  consider:  first,  the 
amount  being  earned  by  the  employee  at  the  time  of  the 
injury ;  second,  the  nature  and  extent  of  the  injury ;  third, 
the  extent  of  the  resulting  incapacit}^^2  Even  though  the 
quamtum  of  the  compensation  is  affected  by  the  amount 
of  wages,  the  payment  is  not  instead  of  wages,  but  is  in 
place  of  all  the  rights  of  action  that  belonged  to  the  in- 
jured employee,  and  covers  suffering  and  temporary  or 
permanent  disability  as  well  as  loss  of  wages.^^ 

[1903]  App.  Cas.  443,  19  T.  L.  E.  way  Motor,   etc.,   Co.,    (1918)    201 

684.  Mich.  90,  166  N.  W.  840. 

28— Bryant  v.  Fissell,  (1913)  84  32— Suth.  Dam.  (4th  ed.)  §1387. 

N.  J.  Law  72,  86  Atl.  458,  3  N.  C.  E.   g.,   see   the  following:    Calif. 

C.  A.  585,      See  also  Clover,  Clay-  Stat.  1917,  Chap.  586,  Sec.  9;  Code 

ton  &  Co.  V.  Hughes,   [1910]  App.  of  Iowa,  Supp.,  §  2477  m  9;   3  Md. 

Cas.  242,  26  T.  L.  R.  359.  Ann.  Code,  Art.  101,  Sec.  36;  Okla. 

29 — Roper  v.  Greenwood,   [1900]  Sess.   Laws    1915,    Chap.    246,   Sec. 

83  L,  T.  471,  6;  Rem.  &  Bal.  Ann.  Code  Wasli., 

30 — Fenton    v.    Thornley    &    Co.,  Supp.  1913,  6604-5. 

[1903]  App.  Cas.  443,  19  T.  L.  B.  33— King  v,  Viscoloid  Co.,  (1914) 

684.  219  Mass.  420,  106  N,  E.  988,  7  N. 

31— See  16  N.  C.  C.  A,  550  note,  C.  C,  A.  254, 

and   cases    there    cited,    which    in-  "The  scheme  of  the  act  is  that 

elude:     Shell  Co.  v.  Industrial  Ace,  the     employer     shall     be     insured 

Commission,  (Calif.  App.  1918)  172  against  the  losses  from  personal  in- 

Pac,    611;    Pacific    Coast    Casualty  jury   to   employees   arising   out    of 

Co,  V,  Pillsbury,  (1915)    171  Calif,  and  in  the  course  of  their  employ- 

319,  153  Pac.  24;   Reiss  v.  North-  ment.     The  cost  of  such  insurance 


WORKMEN'S  COMPENSATION  447 

277.  Aggravation  or  Acceleration  of  Injury  by  Pre- 
Existing  Condition. — The  fact  that  claimant's  injury  in 
course  of  employment  was  accelerated  or  aggravated  by 
a  pre-existing  ailment,  does  not  deprive  him  of  his  right 
to  compensation.^^ 

278.  "Total  Disability."— Where  an  act  provides  cer- 
tain compensation  for  total  disability,  the  fact  that,  be- 
cause a  workman  already  has  some  physical  deficiency,  so 
that  he  can  be  totally  disabled  by  an  injury  which  would 
only  partially  disable  a  normal  man,  does  not  deprive  him 
of  his  right  to  compensation  for  total  disability.  If  an 
employee  has  already  lost  one  hand  before  his  employ- 
ment, and  now  loses  the  other,  or  if  he  has  already  lost 
one  eye  and  now  loses  the  other,  he  is  held  entitled  to  com- 
pensation as  for  total  disability .^^ 

279.  Disfigurement  can  be  allowed  for  under  a  work- 
men's compensation  act,  only  if  mentioned  therein.^^ 

can  be  determined  so  long  as  the  wages  of  an  injured  or  killed  minor 

basis  on  which  compensation  is  to  employee  has  sometimes  been  taken 

be  reckoned  is  wages  paid  by  the  into    consideration    in    making    an 

employer.     *     »     *     But   it   would  award.    See  16  N.  C.  C.  A.  286  note, 

be  a  matter  of  utter  uncertainty  if  34 — Hartz    v.    Hartford    Faience 

the    compensation    should    depend,  Co.,    (1916)   90  Conn.  539,   97  Atl. 

not    upon    wages    paid,    but    upon  1020,  14  N,  C.  C.  A.  543-545  note, 

wages   which   the  Industrial   Acci-  35 — ^In  re  J.  &  P.  Coats,   (E.  I. 

dent   Board   dfter   an   injury   may  1918)    103    Atl.    833,    is    a    strong 

find    upon    independent    evidence,  case  in  point.   See   also  Industrial 

perhaps    not    readily    open    to    the  Commission      v.     Johnsorn,      (Colo, 

employer  during  the  period  of  em-  1918)   172  Pac.  422,  16  N.  C.  C.  A. 

ployment,    that    the    injured    em-  350  and  note. 

ployee  might  have  earned  in  some  3(5 — See  note  on  "Disfigurement 
other  employment  or  field  of  activ-  as  Ground  for  Compensation  un- 
ity. »  *  *  'Wages,'  as  here  der  Workmen's  Compensation 
used,  means  'the  wages  earned  in  Acts,"  16  N.  C.  C.  A.  481. 
the  particular  employment  orut  of  Under  the  New  York  act,  read- 
which  the  injury  arose.'  " — In  re  ing  as  follows:  "In  case  of  an 
Gagnon,  (Mass.  1917)  117  N.  E.  injury  resulting  in  serious  facial 
321,  16  N.  C.  C.  A.  286.  The  or  head  disfigurement  the  commis- 
probability   of  aai  increase   in  the  siom   may   in   its   discretion,   make 


448  LAW  OF  DAMAGES 

280.  Avoidable  Consequences. — Results  proximately 
arising  from  negligence  of  the  workman,  following  his 
original  injury  in  the  course  of  employment,  and  which 
are  results  clearly  avoidable  by  the  workman  if  he  only 
act  as  a  prudent  man,  are  not  proximate  results  of  the 
original  injury,  and  therefore  cannot  be  compensated  for. 
So,  where  an  employee,  after  injury  to  his  eye  and  the 
consequent  formation  of  a  cataract,  is  blind,  but  can  be 
cured  of  his  blindness  by  an  operation,  which  would  prob- 
ably be  successful  and  is  attended  by  no  risk,  the  proxi- 
mate cause  of  his  continued  blindness  is  not  the  accident, 
but  is  his  unreasonable  refusal  to  permit  the  operation ; 
and  therefore  he  cannot  recover  compensation  for  perma- 
nent blindness.^^ 

281.  Dependents. — Where  an  employee  dies  of  his  in- 
juries, only  his  dependents  have  a  right  to  compensation. 
Dependency  is  a  question  of  fact.  Proof  of  the  relation 
of  wife  or  minor  child  to  deceased  ordinarily  raises  a 
presumption  of  dependency;  but  proof  may  be  adduced 
also  to  show  that  others  are  dependent.^^ 

282.  Choice  of  Remedy. — ^Where  the  statute  does  not 
make  the  right  of  compensation,  according  to  schedule,  a 
substitute  for  other  rights  of  action,  the  employee  may 
waive  his  rights  under  the  act  and  bring  his  tort  action 
for  damages.^^    So  also,  an  employee  may  accept  a  lump 

such  award  or  compensation  as  it  37 — Joliet  Motor  Co.  v.  Indus- 
may  deem  proper  and  equitable,  in  trial  Board,  (1917)  280  HI.  148, 
view  of  the  nature  of  the  disfigure-  117  N.  E.  423,  15  N.  C.  C.  A.  75. 
ment,  but  not  to  exceed  three  thou-  Accord:  Walsh  v.  Locke  &  Co., 
sand  five  hundred  dollars,"  it  is  [1914]  W.  C.  &  Ins.  Eep.  95,  6  N. 
held  that  "concurrent  awards  may  C.  C.  A.  675. 

be  made,  ome  for  serious  facial  or  38 — Suth.  Dam.  (4th  ed.)  §  1385, 

head  disfigurement,  and  one  for  dis-  and  cases  there  cited, 

ability  or  loss  of  earning  power."  39  —  State     ex     rel.     Yaple     v. 

— Erickson    v.   Preuss,    (1918)    223  Creamer,   (1912)   85  O.  St.  349,  97 

N.  Y.  365,  119  N.  E.  555,  16  N.  C.  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694, 

C.  A.  481,  aff'g  169  N.  Y.  Supp.  1  N.  C.  C.  A.  30. 
1093. 


WORKMEN'S  C03^IPENSATI0N  449 

sum  settlement,  in  the  absence  of  statutory  prohibition  of 
such  settlement,  and  thus  bar  his  right  to  compensation 
under  the  act,  even  if  disability  develops  later.^" 

283.  Compulsory  and  Elective  Acts. — Under  some  acts, 
all  of  certain  enumerated  employments  are  placed  under 
the  operation  of  a  plan  for  compensation,  whether  em- 
ployers and  employees  so  desire  or  not.  Under  other 
acts,  either  an  employer  or  an  employee  may  elect  to 
come  under  the  compensation  plan.  Under  still  other  and 
probably  most  acts,  either  employer  or  employee  may,  at 
a  specified  time,  reject  the  operation  of  the  act.*^ 

284.  Exemplary  Damages. — It  is  not  within  the  usual 
purpose  of  workmen's  compensation  acts  to  afford  a  basis 
for  exemplary  damages  or  any  form  of  punishment.  The 
Massachusetts  compensation  act,  however,  provides  that 
"if  the  employee  is  injured  by  reason  of  the  serious  and 
willful  misconduct  of  a  subscriber  or  of  any  person  reg- 

40  —  In    re    McCarthy,     (Mass.  of  fellow-servant  rule,  assumption 

1917)    115  N.  E.  764,  14  N.  C.  C.  of  risk,  or  contributory  negligence. 

A.  346.  State    ex    rel.    Yaple    v.    Creamer, 

41— Suth.  Dam.  (4th  ed.)  §1375.  (W12)  85  O.  St.  349,  97  N.  E.  602, 

Either     employer     or     employee  39  L,  E.  A,   (N.  S.)   694,  1  N,  C. 

may,  by  notice,  elect  to  reject  the  C.  A.  30. 

operation  of  the  act,  under  Code  of  The  Washington  statute  requires 

Iowa,  Supp.   §§  2477  m,  2477  m  2.  employers   in   extra-hazardous   em- 

The  New  Jersey  act  provides  ployments  to  contribute  to  an  in- 
that  the  employer  may  choose  to  surance  fund  based  upon  their  pay- 
avail  himself  of  the  act  or  not.  If  rolls,  and  prorvides  stated  compen- 
not,  defenses  of  fellow-servant,  as-  sation.  State  ex  rel,  Davis-Smith 
sumed  risk,  and  contributory  neg-  Co.  v.  Clausen,  (1911)  65  Wash, 
ligence  if  not  wilful,  are  abolished.  156,  117  Pac.  1101. 
See  summary  of  New  Jersey  stat-  The  Wisconsin  statute  provides 
ute,  2  N.  C.  C.  A.  839.  that  an  employer  may  elect  to  come 

The    Ohio    statute    compels    em-  under    the    compensation    plan    or 

ployers  of  five   or   more   workmen  not,  but,  if  not,  that  the  defenses 

in  the  same  business   to   elect  be-  of     fellow-servant     and     assumed 

tween   paying   into   a   state   insur-  risk     are    abolished.      Borgnis     v. 

ance  fund  a  certain  premium  and  Falk  Co.,  (1911)   147  Wis.  327,  133 

being  liable  wichout  being  allowed  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489, 

to  avail  themselves  of  the  defenses  2  N.  C.  C.  A.  834, 
Bauer  Dam.— 29 


450  LAW  OF  DAIilAGES 

ularly  entrusted  with  and  exercising  the  powers  of  super- 
intendence, the  amounts  of  compensation  hereinafter 
provided  shall  be  doubled. ' '  ^^ 

CASE  ILLUSTRATIONS 

1.  A  cashier  was  murdered  and  robbed  while  traveling  in  a 
railway  carriage  to  a  colliery  with  a  large  sum  of  money  for  the 
payment  of  his  employers'  workmen.  This  is  an  "accident" 
from  the  standpoint  of  the  person  murdered  and  arises  "out  of" 
his  employment,  and,  therefore,  his  widow  is  entitled  to  receive 
compensation  under  the  Workmen's  Compensation  Act  of  lOOG.'*^ 

2.  A  workman  engaged  in  coal  mining  sustained  a  nervous 
shock,  caused  by  excitement  and  alarm  resulting  from  a  fatal 
accident  to  a  fellow  workman  engaged  in  the  same  employment. 
This  is  a  "personal  injury  by  accident  arising  out  of  and  in  the 
course  of  the  employment,"  within  the  Workmen's  Compensa- 
tion Act  of  1906.44 

3.  Decedent  was  killed  by  a  heavy  bar  of  metal  falling  upon 
his  head  from  an  upper  story  of  the  building  upon  which  he 
was  at  work.  The  falling  of  the  bar  was  caused  by  another 
workman,  but  it  did  not  appear  that  his  act  was  intentional. 
Held,  an  "accident"  within  the  purview  of  the  statute.^^ 

4.  Petitioner,  after  ten  days'  service  in  defendants'  bleaehery, 
was  affected  with  a  rash,  which  was  pronounced  to  be  a  condition 
of  eczema,  and  it  was  said  that  it  might  be  caused  by  acids.  The 
trial  judge  found  that  petitioner's  condition  was  caused  by  con- 
tact with  the  dampened  goods.  Held,  that  the  petitioner  was  not 
injured  by  accident.*^ 

5.  An  employer  supplied  contaminated  drinking  water  to  his 
employe,  who  thereby  contracted  typhoid  fever  and  died.  Held, 
that  this  was  a  personal  injury  accidentally  sustained,  proxi- 

42— Mass.  Laws   of   1911,   Chap.  45— Bryant  v,  Fissell,  (1913)  84 

751,  part  II,  section  3;  1  N.  C.  C.      N.  J.  Law  72,  86  Atl.  458,  3  N.  C. 

A.  560.  C.  A.  585. 

43 — ^Nisbet    v.    Eayne    &    Bum,  46  —  Liondale     Bleach,     Dye     & 

[1910]  2  K.  B.  689,  3  N.  C.  C.  A.  Paint   Works  v.   Riker,    (1914)    85 

268.  N.  J.  Law  426,  89  Atl.  929,  4  N. 

44— Yates  v.   South   Kirkby,  F.  C.  C.  A.  713. 
&  H.  Collieries,  Ltd.,  [1910]   2  K. 

B.  538,  3  N.  C.  C.  A.  225. 


WORKMEN'S  COMPENSATION  451 

mately  caused  by  accident  while  the  employe  was  performing 
services  growing  out  of  and  incidental  to  his  employment.^ '^ 

6.  A,  traveling  salesman  for  B,  is  killed  in  the  sinking  of  the 
Lusitania,  while  traveling  upon  the  business  of  B.  Held,  error 
to  hold  that  the  death  did  not  arise  out  of  the  employment.*  ^ 

7.  Applicant  was  employed  as  potman  in  the  public  house  of 
defendant,  and  was  cleaning  a  brass  plate  on  the  street  side  of 
the  house,  when  he  was  knocked  down  and  injured  by  the  con- 
cussion incident  to  the  exploding  of  a  bomb  dropped  by  German 
aircraft.  He  is  held  not  entitled  to  compensation,  as  it  was  not 
showTi  that  the  applicant  "was  injured  through  a  risk  specially 
attendant  upon  his  being  on  the  street  as  distinguished  from  his 
being  in  any  other  place. ' '  ^^ 

8.  The  fingers  of  an  employee's  right  hand  were  crushed,  and 
fingers  of  the  left  hand  were  also  injured,  causing  an  infection 
of  the  left  hand.  Held,  that  it  was  proper  to  allow  the  statutory 
damages  for  partial  but  permanent  injury  to  the  fingers,  and 
also  for  the  temporary  disability  from  the  infection,  as  the  two 
injuries,  although  the  results  of  the  same  accident,  were  different 
in  character.  ^50 

9.  One  employed  as  a  gardener,  laborer,  and  caretaker  was 
alleged  to  have  died  as  the  result  of  ptomaine  poisoning  from 
sewer  gas  breathed  while  obeying  an  order  of  his  employer  to 
find  and  open  certain  cesspools,  on  which  work  he  was  engaged 
four  or  five  days.  Held,  that  his  death  is  not  due  to  an  "acci- 
dent arising  out  of  or  in  the  course  of  employment"  within  the 
meaning  of  the  Workmen's  Compensation  Act  of  1906  so  as  to 

-entitle  his  widow  to  claim  compensation  thereunder,  in  the  ab- 
sence of  proof  indicating  the  exact  time,  circumstances,  place, 
and  cause  of  the  accident,  since  such  disease  is  not  an  "indus- 

47 — Venncr  v.   New  Dells  Lum-  48 — Foley  v.  Home  Eubber  Co., 

ber  Co.,   (1915)   161  Wis.  370,  154  (N.  J.  1917)  99  Atl.  624. 

N.   W.   640,   L.   E.   A.   1916  A   273.  49— Allcock  v.  Sogers,  (1918)  62 

But   notice  restricted   construction  Sol.  J.  421,  aff'g   [1918]   W.  C.  & 

placed  uporn   "accident"  in  State  Ins.  Eep.  80. 

ex  rel.  Faribault  Woolen  Mills  Co.  50— Nitram  Co.  v.  Creagh,  (1913) 

V.  District  Court,  (Minn.  1917)  164  84  N.  J.  Law  243,  86  Atl.  435,  3 

N.    W.   810,    15    N.    C.    C.   A.   520,  N.  C.  C.  A.  587  note, 
which  refuses  recovery  for  typhoid. 


452  LAW  OF  DAMAGES 

trial  disease"  scheduled  in  the  Act,  concerning  which  the  appli- 
cant is  not  required  to  present  such  proof. ^^ 

10.  An  engineer  became  fatally  overheated  while  working  in 
an  engine  room  of  a  steamer  in  the  Ked  Sea,  the  temperature  in 
the  room  being  114°  Fahrenheit.  Held,  that  he  died  of  accident 
arising  out  of  and  in  the  course  of  his  employment.  ^2 

51— Eke  V.  Hart-Dyke,  [1910]  2  ping  Co.,  Limited,  [1914]  W.  C. 
K.  B.  677,  3  N.  C.  C.  A.  230.  &  Ins.  Rep.  290,  6  N.  C.  C.  A.  708. 

52 — ^Maskery  v.  Lancashire  Ship- 


TABLE  OF  CASES 


[eifebences  are  to  the  pages.] 


Aaron  v.  Ward,  169. 

Acebal  v.  Levy,  207. 

Ackerman  v.  True,  342,  343. 

Adams  v.  Brosius,  173. 

Adams  v  Chicopee,  33. 

Adams  v.  Lorraine  Mfg.  Co.,  323. 

Adams  v.  Main,  400,  401. 

Adams  v.  St.  Louis,  etc.  E.  Co.,  122. 

Adams  v.  Smith,  370. 

Adderley  v.  Great  Northern  Ey.  Co.,  28. 

Agnew  V.  McElroy,  86. 

Alabama,  etc.  E.  Co.  v.  Sellers,  117,  121. 

Alabama  Power  Co.  v.  Keystone  Lime  Co.,  430. 

Alderson  v.  Kahle,  373. 

Alexian  Bros.  v.  Oshkosh,  433. 

Allaire  v.  St.  Luke 's  Hospital,  359. 

AUcock  V.  Eogers,  451. 

Allen  V.  Fox,  336,  337. 

Allen  V.  Suydam,  257. 

AUis  V.  McLean,  226. 

Allison  V.  Chandler,  160,  164. 

Allsop  V.  Allsop,  373. 

Althorf  V.  Wolfe,  421. 

Anderson  v.  Evansville  Brewing  Ass'n,  121. 

Anderson  v.  Hilton  &  Dodge  Lumber  Co.,  234. 

Anderson  v.  International  Harvester  Co.,  123. 

Anderson  v.  Sloane,  337. 

Angell  V.  Eeynolds,  408,  410. 

Anonymous,  373,  374. 

Antcliff  V.  June,  378. 

Archibald  v.  Ott,  443,  444. 

Ardizonne  v.  Archer,  201. 

Argotsinger  v.  Vines,  316. 

Arkansas,  etc.  Ey.  Co.  v.  Stroude,  123. 

453 


454  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Armory  v.  Delamirie,  9. 

Armstrong  v.  Philadelphia,  337,  338,  339. 

Ashby  V.  White,  111. 

Ashley  v.  Harrison,  61. 

Ashley  v,  Eoot,  257. 

Atchison  v.  King,  58. 

Atchison,  etc.  E.     Co..  v.  Calhoun,  28. 

Atchison,  etc.  E.  Co.  v.  Eingle,  124. 

Atchison,  etc.  E.  Co.  v.  Stanford,  332. 

Atchison,  etc.  E.  Co.  v.  Townsend,  422. 

Atkyns  v.  Kinnier,  105. 

Atlanta  St.  E.  Co.  v.  Jacobs,  154. 

Atlantic  Coast  Line  E.  Co.  v.  Postal  Tel.-Cablc  Co.,  186. 

Atwood  V.  "Utah  Light,  etc.  Co.,  357. 

Augusta  Steam  Laundry  Co.  v.  Debow,  106. 

Austin  V.  Wilson,  121. 

Ayres  v.  Chicago,  &  N.  W.  By  Co.,  269. 


Badger  v.  Titcomb,  87. 

Baer  v.  Chambers,  380,  381. 

Bagley  v.  Smith,  261,  263. 

Bailey  v.  Bailey,  408. 

Bailey  v.  Chicago,  M.  &  St.  P.  Ey.  Co.,  316. 

Bailey  v.  Damon,  266. 

Bailey  v.  London  Guarantee,  etc.  Co.,  388. 

Bailey  v.  Western  Union  Tel.  Co.,  276. 

Baker  v.  Bolton,  414. 

Baker  v.  Drake,  334. 

Baker  v.  Pennsylvania  E.  Co.,  168. 

Baldwin  v.  Munn,  214. 

Baldwin  v.  Porter,  330. 

Ball     V.  Liney,  339. 

Ball  V.  Marquis,  403. 

Baltimore  &  O,  E.  Co.  v.  Barger,  138. 

Baltimore  &  O.  E.  Co.  v.  Boyd,  311. 

Baltimore  &  O.  E.  Co.  v.  Carr,  270. 

Baltimore  &  P.  E.  Co.  v.  Fifth  Baptist  Church,  185. 

Banta  v.  Stamford  Motor  Co.,  101,  106. 

Barbour  County  v.  Horn,  358. 

Barker   v.    Lewis   Storage,   etc,   Co.,  333. 

Barnes  v.  Western  IJjiion  Tel.  Co.,  281. 

Bamett  v.  Cement  Co.,  58. 

Barr  v.  Moore,  121. 

Barrett  v.  Monro,  102,  108. 

Barringer  v.  King,  141. 


TABLE  OF  CASES  455 


[references  are  to  the  pages.] 

Barry  v.  Cavanaugh,  231. 

Bartlett  v.  Blaine,  388. 

Bartlett  v.  Tucker,  259. 

Bartolini  v.  Grays  Harbor,  etc.  Co.,  111. 

Bass  V.  Chicago  &  N.  W.  Ry.  Co.,  126. 

Bassett  v.  Rogers,  256,  260. 

Batchelder  v.  Kelly,  322. 

Bateman  v.  Ryder,  332,  340. 

Bates  V.  Holbrook,  74,  80. 

Batton  V.  Public  S.  C,  35. 

Beach  v.  Beach,  390,  391. 

Beach  v.  Hancock,  175,  364. 

Beardmore  v.  Carrington,  386. 

Beauchamp  v.  Saginaw  Mining  Co.,  34. 

Beehtol  v.  Ewing,  353. 

Beck  V.  Dowell,  130. 

Beck  V.  Thompson,  120. 

Becker  v.  Dupree,  129. 

Becker  v.  Philadelphia  &  R.  T.  R.  Co.,  428. 

Beckham  v.  Seaboard  Air  Line  Ry.  Co.,  30. 

Beekwith  v.  Bean,  385,  386. 

Beckwith  v.  Sibley,  258. 

Bedell  v.  Powell,  299. 

Bee  Publishing  Co.  v.  World  Publishing  Co.,  120,  369. 

Beede  v.  Lamprey,  333. 

Belford  v.  Crane,  352. 

Bell  V.  Cunningham,  257. 

Bell  V.  Great  Northern  Ry  Co.,  179. 

Bell  V.  Hayes-Ionia  Co.,  36. 

Bendernagle  v.  Cocks,  87. 

Benedict  Pineapple  Co.  v.  Atlantic,  etc.  R.  Co.,  24,  50. 

Benjamin  v.  Benjamin,  320. 

Benjamin  v.  Hillard,  227. 

Benjamin  v.  Storr,  344. 

Bennett  v.  Alcott,  394,  395,  398. 

Bennett  v.  Beam,  297. 

Bennett     v.  Bennett,  406. 

Bennett  v.  Hood,  85. 

Bennett  v.  Marion,  129. 

Bennett  v.  Williamson,  375. 

Bent  V.  Priest,  256. 

Benziger  v.  Miller,  243. 

Berger  v.  Jacobs,  351. 

Bergerson  v.  Peyton,  387. 

Berkey  &  Gay  Furniture  Co.  v.  Hascall,  228. 

Bernstein  v.  Meech,  156. 

Berry  v.  Da  Costa,  170,  285. 


456  TABLE  OF  CASES 

[reperknces  are  to  the  pages.] 

Berry  v.  Greenville,  64. 

Bessemer  Land,  etc.  Co.  v.  Jenkins,  181. 

Best  V.  Allen,  134. 

Bethea  v.  Western  Union  Tel.  Co.,  121. 

Bigaouette  v.  Paulet,  400. 

Billings  V.  Albright,  404. 

Bingham  v.  Lipman,  Wolfe  &  Co.,  128. 

Birdsell  Mfg.  Co.  v.  Brown,  257. 

Birket  v.  Williams,  317. 

Birmingham  Ky.  etc.  Co.  v.  Sprague,  340. 

Birmingham  Water  Works  Co.  v.  Vinter,  169. 

Bistline  v.  Ney,  40. 

Bixby-Theisen  Lumber  Co.  v.  Evans,  235. 

Black  V.  Canadian  Pacific  Ry.  Co.,  382,  383. 

Blackburn  v.  Alabama,  etc.  Ry.  Co.,  114. 

Blake  v.  Lord,  16. 

Blake  v.  Midland  Ry.  Co.,  418. 

Blake  v.  Rich,  429. 

Bliss  V.  Ball,  323. 

Bless  V.  Tobey,  366. 

Blossom  v.  Barrett,  390. 

Blue  Grass  T.  Co.  v.  Ingles,  357. 

Bogan  V.  Carolina  Central  R.  Co.,  37,  38. 

Bolles  v.  Beach,  253,  254. 

Bolton  V.  Vellines,  158. 

Booth  V.  Spuyten  Duyvil,  etc.  Co.,  19,  226. 

Borgnis  v.  Falk  Co.,  449. 

Bosch  V.  Burlington  &  Missouri  R.  Co.,  52. 

Botana  v.  Joseph  F.  Paul  Co.,  39. 

Boutwell  V.  Marr,  129. 

Boutwell  V.  Champlain  Realty  Co.,  6. 

Bowen  v.  Boston  &  A.  R.  Co.,  26. 

Bowers,  In  re,  54. 

Bowers  v.  Mississippi,  etc.  Boom  Co.,  83,  314. 

Bowman  v.  Teall,  269. 

Boyce  v.  Bailifife,  61. 

Boyd  V.  Byrd,  399. 

Boyer  v.  Barr,  119. 

Boyle  V.  Saginaw,  350. 

Boynton  v.  Kellogg,  292,  293. 

Boynton  v.  Somersworth,  35. 

Bradburn  v.  Great  Western  Ry.  Co.,  354. 

Bradley  v.  Cramer,  369. 

Bradley  v.  Heath,  369. 

Bradley  v.  Hooker,  331,  336. 

Bradstreet  Co.  v.  Oswald,  377. 

Bradt  v.  New  Nonpareil  Co.,  181. 


TABLE  OF  CASES  457 

[references  are  to  the  pages.] 

Brand  v,  Hinchman,  378,  380. 

Brannon  v.  Silvernail,  121. 

Brant  v.  Gallup,  70,  242. 

Braswell  v.  American  Life  Ins.  Co.,  247. 

Braun  v.  Craven,  180. 

Bremer  v.  Minneapolis  etc.  Ry.  Co.,  420. 

Brennen  v.  Brennen,  390. 

Brett  V.  Warnick,  249. 

Brewer  v.  Weakley,  370. 

Briggs  V.  Evans,  394. 

Briggs  V.  Brushaber,  391. 

Brigham  v.  Carlisle,  163. 

Brighara  v.  Hawley,  236. 

Brinkmeyer  v.  Bethea,  320. 

Britton  v.  Turner,  237,  244. 

Broadway  Photoplay  Co.  v.  World  Film  Corporation,  202. 

Broughel  v.  Southern  New  England  Tel.  Co.,  417. 

Brown  v.  Calumet  Eiver  R.  Co.,  427. 

Brown  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  24,  36,  54,  55,  270,  271. 

Brown  v.  Chicago  &  N.  W.  Ry.  Co.,  416,  417. 

Brown  v.  Cummings,  61. 

Brown  v.  Evans,  121. 

Brown  v.  Linville  River  Ry.  Co.,  46. 

Brown  v.  Morrill,  388. 

Brown  v.  Swineford,  137, 

Browning  v.  Fies,  169,  173. 

Browning  v.  Jones,  73,  400,  401,  403. 

Broyhill  v.  Norton,  289. 

Bruce  v.  Cincinnati  R.  Co.,  140. 

Brumble  v.  Brown,  115. 

Brundsen  v.  Humphrey,  85. 

Brunnell  v.  Cook,  338. 

Bryant  v.  Fissell,  446,  450. 

Buekstaff  v.  Vial,  375. 

Buel  v.  United  Rys.  Co.,  361. 

Bump  v.  Betts,  148. 

Bunnell  v.  Greathead,  402. 

Burgoon  v.  Johnston,  110. 

Burk  V.  Areata,  etc.  R.  Co.,  422. 

Burruss  v.  Hines,  133. 

Burt  V.  McBain,  370,  374. 

Bush  V.  Canfield,  224. 

Butler  V.  Eschelman,  293. 

Butler  V.  Hoboken  Printing  &  Pub.  Co.,  377, 

Button  V.  McCauley,  294. 

Byrnes  v.  Rich.  217, 


458  TABLE  OF  CASES 

[kzfeeences  are  to  the  pages.] 

c 

Cable  V.  Dakin,  339. 

Cady  V.  Fairchild,  113,  114. 

Caesar  v.  Rubinson,  104. 

Cahen  v.  Piatt,  231. 

Caldwell  v.  Raymond,  367. 

Callahan  v.  Ingram,  372. 

Cameron  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  431. 

Camparetti  v.  Union  Ry.  Co.,  152. 

Campbell  v.  Chamberlain,  380. 

Carey  v.  Berkshire  R.  Co.,  414. 

Carhart  v.  Wainman,  193. 

Carlile  v,  Bentley,  357,  358. 

Carmichael  v.  Southern  Bell  Telephone  Co.,  279. 

Carolina  etc.  Ry.  v.  Shewalter,  425. 

Carpenter  v.  Dresser,  339. 

Carpenter  v.  Miller,  30. 

Carpenter  v.  Providence  "Washington  Ins.  Co.,  250. 

Carson  v.  Singleton,  138. 

Carson  v.  Turrish,  348. 

Carsten  v.  Northern  Pacific  R.  Co.,  271. 

Carter  v.  Thurston,  6. 

Carter  v.  Wells,  Fargo  &  Co.,  91. 

Cary  v.  Gruman,  228. 

Cassidy  v.  Taylor,  etc.  Co.,  255. 

Caswell  V.  Howard,  11. 

Cavanagh  v.  Durgin,  324. 

C.  B.  Coles  &  Sons  Co.  v.  Standard  Lumber  Co.,  235. 

Cecil  V.  Hicks,  195. 

Central  Consumers  Co.  v.  Piukert,  344. 

Central  of  Georgia  Ry.  Co.  v.  Knight,  169. 

Central  Georgia  Power  Co.  v.  Fincher,  357. 

Central  Ry.  Co.  v.  Serfass,  168. 

Cerveny  v.  Chicago  Daily  News  Co.,  367,  375. 

Chace  v.  Hinman,  253. 

Chamberlain  v.  Bagley,  100. 

Chamberlain  v.  Oshkosh,  33. 

Chamberlain  v.  Parker,  112,  201. 

Chamberlain  v.  Williamson,  286,  301. 

Chancey  v.  Norfolk  &  W.  R.  Co.,  31. 

Chapin  v.  Babcock,  113. 

Chapman  v.  Brown,  305. 

Chapman  v.  Comings,  104. 

Chapman  v.  Fargo,  268,  269. 

Cheda  v.  Bodkin,  327. 

Cheddick  v.  Marsh,  99, 


TABLE  OF  CASES  459 

[references  are  to  the  pages.] 

ChelUs  V.  Chapman,  117,  130,  282,  283,  291,  298,  299. 

Chesapeake  &  Ohio  Ry.  Co.  v.  Wills,  30,  46. 

Chesebro  v.  Powers,  194. 

Chicago  V.  Farwell,  428. 

Chicago  V.  Huenerbein,  325. 

Chicago  V.  Langlass,   129. 

Chicago  V.  McLean,  356. 

Chicago  V.  Major,  426. 

Chicago  V.  Martin,  129. 

Chicago  V.  O'Brennan,  358. 

Chicago  &  A.  R.  Co.  v.  Flagg,  185. 

Chicago  &  A.  R.  Co.  v.  Shannon,  419. 

Chicago,  B.  &  Q.  R.  Co.  v.  Hines,  348. 

Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  154. 

Chicago  City  R.  Co.  v.  Anderson,  348. 

Chicago  City  R.  Co.  v.  Cooney,  34. 

Chicago  City  R,  Co.  v.  Henry,  349. 

Chicago  City  R.  Co,  v.  Saxby,  64,  74. 

Chicago  &  E.  I.  R.  Co.  v.  Driscoil,  425. 

Chicago  Great  Western  Ry.  Co.  v.  Minneapolis,  St.  P.,  etc.  Ry.  Co.,  308. 

Chicago  House- Wrecking  Co.  v.  United  States,  99. 

Chicago,  K.  &  W.  R.  Co.  v.  Willets,  310,  314,  315,  324, 

Chicago,  M.  &  St.  P.  Ry.  Co,  v.  Lindeman,  441. 

Chicago  &  N.  W.  Ry.  Co.  v.  Bayfield,  426. 

Chicago  &  N.  W.  Ry.  Co.  v.  Hoag,  78. 

Chicago  &  N.  W.  Ry.  Co.  v,  Prescott,  57. 

Chicago,  P.  &  St.  L.  R.  Co.  v.  Woolridge,  424. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Carey,  65, 

Chicago,  R.  I.  &  P.  R.  Co,  v,  Devine,  438. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Payzant,  93. 

Chipman  v.  Hibbard,  317, 

Churchill  v.  Hunt,  255. 

Citizens  St.  R.  Co.  v.  Twinamo,  352. 

Clark  V.  Fitch,  394. 

Clark  V.  Franklin,  205. 

Clark  V.  Gilbert,  238. 

Clark  V.  Hart,  327. 

Clark  V.  Kay,  104. 

Clark  V.  London  General  Omnibus  Co.,  Ltd.,  419. 

Clark  V.  Marsiglia,  62,  66,  230. 

Clark  V.  Zeigler,  220. 

Clarke  v.  New  York,  N.  H.  &  H.  R.  Co.,  8. 

Cleghorn  v.  New  York  Central  etc.  Co.,  126. 

Clement  v.  Schuylkill  River  R.  Co.,  102. 

Clements  v.  Maloney,  148. 

Cleveland  v.  Citizens  Gas  Light  Co.,  186. 

Cleveland,  C.  &  C.  R.  Co.  v.  Bartram,  192. 


460  TABLE  OF  CASES 

[refekences  are  to  the  pages.] 

Closson  V.  Staples,  379. 

Clover,  Clayton  &  Co.  v.  Hughes,  446. 

Clydebank  Engineering  Co.  v.  Don  Jose,  etc.,  106. 

Clyde  Coal  Co.  v.  Pittsburgh,  etc.,  R.  Co.,  73. 

Coats,  J.  &  P.,  In  re,  447. 

Cobb,  etc.  Co.  v.  Illinois  Central  R.  Co.,  267. 

Cochran  v.  Ammon,  130,  148. 

Colburn  v.  Marble,  293. 

Colburn  v.  Woodworth,  238. 

Colby  V.  Reynolds,  365. 

Colorado,  etc.  Co.  v.  Hartman,  319. 

Colorado  M.  Ry.  Co.  v.  Brown,  431. 

Colorado  Springs,  etc.  Ry.  Co.  v.  Nichols,  154. 

Colter  V.  Lower,  385. 

Columbus  R.  Co.  v.  Newsome,  59. 

Colvin  V.  Peck,  125. 

Colwell  V.  Lawrence,  103. 

Commonwealth  v.  Clap,  367. 

Comstock  V.  Connecticut  Ry.,  etc.  Co.,  165. 

Conant  v.  Griffin,  422. 

Cone  V.  Central  R.  Co.,  385. 

Cone  V.  Niagara  Fire  Ins.  Co.,  251. 

Connell  v.  Western  Union  Tel.  Co.,  170. 

Conway  v.  Louisville  &  N.  R.  Co.,  58. 

Cook  V.  Bartlett,  179,  395. 

Cook  V.  Wood,  400. 

Cooley  V.  Pennsylvania  R.  Co.,  270. 

Coolidge  V.  Neat,  181,  285. 

Coombs  V.  King,  347. 

Coon  v.     Moffitt,  395. 

Coontz  V.  Missouri  Pacific  R.  Co.,  357. 

Cooper  v.  Stronge,  etc.  Co.,  241. 

Coover   v.    Davenport,    304. 

Corcoran  v.  Postal  Telegraph,  etc.  Co.,  120. 

Corcoran  v.  Sumption,  262. 

Corning  v.  Corning,  138. 

Cory  V.  Silcox,  111. 

Cory  V.  Thames  Iron  Works  etc.  Co.,  21,  228. 

Coryell  v.  Colbaugh,  296. 

Costigan  v.  Mohawk,  etc.  R.  Co.,  241. 

Couturie  v.  Roensch,  258. 

Covington  St.  Ry.  Co.  v.  Packer,  181. 

Cowan  V.  Western  Union  Tel.  Co.,  81. 

Cox  V.  Edwards,  305. 

Cox  V.  McLaughlin,  196. 

Cox  V.  Philadelphia  etc.  R,  Co.,  429. 

Craker  v.  Chicago  &  N.  W.  Ry.  Co.,  135. 


i:able  of  cases  461 


[KEFESENCBS  ABE  TO  THE  PAQES.] 

Craney  v.  Donovan,  369,  371. 

Craven  v.  Bloomingdale,  385, 

Credle  v.  Ayers,  311. 

Cregin  v.  Brooklyn  Crosstown  R.  Co.,  352. 

Crichfield  v.  Julia,  74,  79. 

Cross  V.  Grant,  401,  403. 

Crump  V.  Ingersoll,  256. 

Cumberland  etc.  Co.  v.  Stambaugh,  51. 

Cumberland  Grocery  Co.  v.  Baugh,  345. 

Cunningham  v.  North  Western  Improvement  Co.,  436. 

Curry  v.  Kansas  &  C.  P.  Ky.  Co.,  86,  88. 

Curtis   V.   VanBergh,   101. 

Curtis  v.  Ward,  339. 

Cutler  v.  Smith,  131. 

Cutter  v.  Powell,  206,  238. 

Cutting  V.  Grand  Trunk  By.  Co.,  268. 


Daggett  V.  Wallace,  293. 

Dalton  V.  Kansas  City,  etc.  R.  Co.,  151,  186, 

Dalton  V.  Southeastern  Ry.  Co.,  425. 

Dana  v.  Valentine,  346. 

Darley  Main  Colliery  Co.  v.  Mitchell,  84,  314,  315. 

Davies  v.  Mann,  38. 

Davis  V.  Brown,  375. 

Davis  V.  Collins,  138. 

Davis  V.  Guarnieri,  418,  421. 

Davis  V.  Hamlin,  256. 

Davis  V.  Hearst,  123,  125,  126. 

Davis  V.  McMillan,  93,  382. 

Davis  V.  Padgett,   288. 

Davis  V.  Seeley,  382. 

Davis  V.  Standish,  40. 

Davis  V.  Taeoma,  etc.  Co.,  182,  376. 

Davis  V.  Western  Union  Tel.  Co.,  277. 

Day  V.  Woodworth,  120,  191. 

Daywitt  v.  Daywitt,  406. 

Dazey  v.  Rolleau,  260. 

Deere  v.  Lewis,  67. 

De  Ford  v.  Johnson,  409. 

De  Ford  v.  Maryland  Steel  Co.,  20. 

Deisenreiter  v.  Kraus-Merkel  Malting  Co.,  28. 

De  la  Bere  v.  Pearson,  Ltd.,  45. 

Delaware,  L.  &  W.  R.  Co.  v.  Frank,  211. 

Demarest  v.  Little.  420,  424. 

Dennis  v.  Cummins,  103. 


462  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Dennis  v.  Maxfield,  160,  165. 

Denny  v.  New  York  Central  R.  Co.,  50. 

Denslow  v.  Van  Horn,  293,  303. 

Denver  v.  Bayer,  5. 

Denver  v.  R.  G.  Ry.  Co.  v.  Harris,   126. 

Denver  v.  R.  G.  Ry.  Co.  v.  Spencer,  418. 

Denver  v.  B.  G.  Ry.  Co.  v.  Young,  351. 

Denver,  S.  P.  &  P.  R.  Co.-  v.  Frame,  333. 

Deputy  v.  Kimmell,  38. 

Derby  v.  Johnson,  245. 

Detroit  Daily  Post  Co.  v.  MeArthur,  120. 

Detroit  Gas  Co.  v.  Moreton  Truck  &  Storage  Co.,  116,  186. 

DettlofF  V.  Hammond,  etc.  Co.,  443. 

Devereux  v.  Buckley,  20,  268. 

Diamond  Rubber  Co.  v.  Harrymau,  348. 

Dickinson  v.  Boyle,  61. 

Dietrich  v.  Northampton,  361. 

Dietzen  v.  Industrial  Board,  443. 

Dimock  v.  United  States  National  Bank,  334. 

Dinger  v.  New  York,  78. 

Dinkelspiel  v.  New  York  Evening  Journal  Pub.  Co.,  372. 

Disbrow  v.  Westchester  Hardwood  Co.,  316. 

Dix  V.  Brookes,  351. 

Dixon  V.  Clow,  321. 

Dodd  Grocery  Co.  v.  Postal  Tel.-Cable  Co.,  278. 

Doe  v.  Filliter,  311. 

Doe  V.  Perkins,  311. 

Doe  V.  Roe,  401. 

Dolan  V.  Supreme   Council,  249. 

Donahoo  v.  Scott,  336,  340. 

Dondis  v.  Borden,  212. 

Donnell  v.  Jones,  380. 

Donnelly  v.  Harris,  137. 

Donnelly  v.  Hufschmidt,  146. 

Donovan  v.  Consolidated  Coal  Co.,  320,  326. 

Doran  v.  Cohen,  85. 

Dorr  Cattle  Co.  v.  Des  Moines  National  Bank,  379. 

Doster  v.  Brown,  205. 

Doughty  V.  O 'Donnell,  205. 

Doushkess  v.  Burger  Brewing  Co.,  234. 

Drake  v.  Chicago,  R.  I.  &  P.  R.  Co.,  319. 

Draper  v.  Baker,  355. 

Draper  v.  Sweet,  232. 

Dresser  Mfg.  Co.  v.  Waterston,  333, 

Drew  V.  Beall,  389. 

Drury  v.  Midland  R.  Co.,  433. 


TABLE  OF  CASES  463 

[BEFEEENCES  ABE  TO  THE  PAGES.] 

Druse  v.  Wheeler,  323. 

Dryer  v.  Kistler,  108. 

Dubuque  Wood  etc.  Ass'n  v.  Dubuque,  16,  18,  52. 

Duff  V.  Juclson,  284,  303. 

Duffies  V.  Duffies,  406. 

Dupont  V.  McAdow,  285,  286,  293. 

Durfee  v.  Newkirk,  122. 

Durning  v.  Hastings,  408. 

Duroth  Mfg.  Co.  v.  Campbell,  337. 

Dustan  v.  MeAndrew,  166. 

Duval  V.  Davey,  187. 

Dwiggins  v.  Clark,  230. 

Dwight  V.  Elmira  etc.  R.  Co.,  316,  317,  318. 

E 

Eagan  v.  Browne,  219. 

Earl  V.  Tupper,  350. 

Earley  v.  Pacific  El.  R.  Co.,  417,  423. 

Easterbrook  v.  Erie  Ry.  Co.,  65. 

Eastman  v.  Sanborn,  68. 

East  Moline  Co.  v.  Weir  Plow  Co.,  115. 

Easton  v.  United  Trade,  etc.  Co.,  184. 

Eden  v.  Lexington  etc.  R.  Co.,  414. 

Edison  v.  Edison  Polyform  Mfg.  Co.,  411,  413. 

Ege  V.  Kille,  311. 

Ehrgott  V.  Mayor,  349. 

Eichar  v.  Kistler,  397. 

Eickhoff  V.  Fidelity,  etc.  Co.,  378. 

Eke  V.   Hart-Dyke,  452. 

Ellis  V.  Brockton  Pub.  Co.,  120,  370. 

Ellis  V.  Hilton,   158. 

Ellithorpe  Air-Brake  Co.  v.  Sire,  157. 

Ellsler  V.  Brooks,  116. 

Elmer  v.  Fessenden,  139. 

Elwood  V.  Addison,  30. 

Emblen  v.   Myers,   123. 

Emerson  v.  Pacific  Coast,  etc.  Packing  Co.,  165,  166. 

Engle  V.  Simmons,  184. 

Equitable  Gas-Light  Co.  v.  Baltimore  Coal  Tar  etc.  Co.,  226. 

Equitable  Mortgage   Co.  v.  Thorn,  235. 

Erickson  v.  Preuss,  448. 

Espy  V.  Jones,   288,  293. 

Eten  V.  Luyster,  28. 

Evans  v.  O'Connor,  401. 

Evansville,  etc.  R,  Co.  v.  Holcomb,  357, 


464  TABLE  OF  CASES 

[references  are  to  the  pages.] 

F 

Fairfax  v.  New  York  Central,  etc.  R.  Co.,  333. 

Fake  v.  Addicks,  31,  49. 

Falk    V.   Waterman,    194. 

Falkner  v,  Shultz,  288. 

Faris  v.  Hoberg,   177. 

Farmers'  Cooperative  Trust  Co.  v.  Floyd,  259. 

Farmers'  Ins.  Co.  v.  Butler,  248. 

Farrar  v.  Alston,  388. 

Fay  V.  Guynon,  201. 

Fay  V.  Parker,  121. 

Fearing  v.   Clark,  233. 

Fell  V.  Northern  Pacific  B.  Co.,  125. 

Fenton  v.  Thornley  &  Co.,  445,  446. 

Ferguson  v.  Missouri  Pacific  Ry.  Co.,  124. 

Ferguson  etc.  Co.  v.  Good,  347. 

Fergusson  v.  Anglo-American  Telegraph  Co.,  275. 

Fetter  v.  Beale,  85,  147. 

Fidler  v.  McKinley,  288,  290,  303. 

Field  V.  Apple  River  Log-Driving  Co.,  6. 

Filer  v.  Smith,  387. 

Fillebrown  v.  Hoar,  219. 

Findlater  v.  Borland,  391. 

Finger  v.  Diel,  3. 

Finlay  v.  Chirney,  302. 

Finn  v.  Gas  &  Water  Co.,  429. 

Finn  v.  Young,  262,  263. 

First  National  Bank  v.  Park,  79. 

First  National  Bank  v.  St.  Cloud,  79, 

Fish  v.  Foley,  82. 

Pish  V.  Nethercutt,  333. 

Fisher  v.  Barber,  296. 

Fisher  v.  Whoolery,   337. 

Fitzgerald  v.  Clarke  &  Son,  444. 

Flanders  v.  Meath,  138. 

Fleetford  v.  Barnett,  293. 

Fletcher  v.  South  Dakota  Central  By.  Co.,  439. 

Florence  Hotel  Co.  v.  Bumpus,  92. 

Flureau   v.   Thornhill,    213. 

Foley  V.  Home  Rubber  Co.,  451. 

Foley  v.  Martin,  125. 

Folsom  v.  Apple  River  Log-Driving  Co.,  320. 

Folsom-Morris  Coal  Mining  Co.  v    De  Vork,  48, 

Foot  V.  Card,  406. 

Foote  V.  Merrill,  317,  326. 

Forbes  v.  Morse,  190, 


TABLE  OF  CASES  465 

[befebences  are  to  the  pages.] 

Ford  V.  Minneapolis  St.  Ry.  Co.,  92,  93. 

Ford  V.  Monroe,  414. 

Fohrman  v.  Consolidated  Traction  Co.,  125. 

Fortescue  v.  Kings  County  Ligliting  Co.,  327. 

Fort  Worth  v.  Patterson,  53. 

Foss  V.  Hildreth,  372. 

Foster  v.  Elliott,  111, 

Foster-Milburn  Co.  v.  Chinn,  411. 

Fowle  V.  Park,  159. 

Fowler  v.  Armour,  238. 

Fowler  v.  Chicago,  etc.  Ry.  Co.,  420,  422. 

Fowler  v.  Oilman,  7. 

Fowler  v.  Old  North  State  Ins.  Co.,  248. 

Fox  V.  Harding,  202,  226. 

Frankel  v.  Norris,  59. 

Franklin  v.  Southeastern  Ry.  Co.,  428. 

Franklin  Plant  Farm  v.  Nash,  124. 

Fraser  v.  Chicago,  R.  I.  &  P.  Ey.  Co.,  48. 

Fraser  v.  Little,  98. 

Freese  v.  Tripp,  121. 

French   v.  Merchants,   etc.   Co.,   20. 

French  v.  Vining,  69. 

Friday  v.  Pennsylvania  R.  Co.,  428. 

Frint  Motor  Car  Co.  v.  Industrial  Commission,  443. 

Frothingham  v.  Everton,  111. 

Fulkerson  v.  Western  Union  Tel.  Co.,  275. 

Fullerton   v.   Fordyce,   64,   65. 

Furnas  v.  Durgin,  253, 

O 

Gagnon,  In  re,  447. 
Gaines  v.  New  York,  53. 
Gainsford  v.  Carroll,  223. 
Galena,  etc.  R.  Co.  v.  Rae,  267. 
Gait  V.  Provan,  82. 
Galvin  v.  Prentice,  205. 
Gandell  v.  Pontigny,  243. 

Gannon  v.  New  York,  N.  H,  &  IT.  R.  Co.,  36. 
Garrick  v.  Florida  Central,  etc.  R.  Co.,  422. 
Garland  v.  Carolina  etc.  Ry.,  31. 
Garrison   v.   Sun  Printing,   etc.   Ass'n,   28,   371. 
Gascoigne  v.  Cary  Brick  Co.,  229. 
Gatzow  V.  Buening,  148. 
Genay  v.  Norris,  120,  131. 

George  W.  Muller,  etc.  Co.  v.  Georgia  By.  etc.  Co.,  102,  109. 
Georgia  v.  Bond,   188. 
Bauer  Dam. — 30. 


466  TABLE  OF  CASES 

[eefeeences  aee  to  the  pages.] 

Georgia  v.  Kepford,  373,  377. 

Georgia  Ky.  etc.  Co.  v.  Baker,  66. 

Georgia  Ey.  etc.  Co.  v.  Tice,  352. 

Gerkins  v.  Kentucky  Salt  Co.,  134. 

Giesy  v.  Cincinnati  etc.  E.  Co.,  428. 

Gilbert  v.  Berkinshaw,  374. 

Gilbert  v.  Kennedy,  309. 

Gilchrist  v.  Bale,  86. 

Gillaspie  v.  Wesson,  259. 

Gillett  V.  "Western  E.  Corporation,  336. 

Gillis  V.  Space,  67. 

Gilman  v.  Noyes,  22. 

Gleason  v.  Prudential  Fire  Ins.  Co.,  252. 

Goddard  v.  Grand  Trunk  Ey.,  120,  126,  127,  128,  129,  135,  175. 

Goddard  v.  Westeott,  284,  295. 

Goldsmith   v.   Joy,   137. 

Goodall  V.  Clarke,  341. 

Goodhart  v.  Pennsylvania  E.  Co.,  153,  167. 

Gooding  v.  Shea,  10,  11,  12. 

Goodman  v.  Pocock,  243. 

Gordon  v.  Brewster,  238. 

Gorman  v.  Budlong,  361,  362. 

Gorton   v.   Harmon,  423. 

Goshen  v.  England,  34. 

Goucher  v.  Jamieson,  137. 

Gower  v.  Andrew,  256. 

Grable  v.  Margrave,  374. 

Graham  v.  Consolidated  Traction  Co.,  426. 

Grand  Eapids,  etc.  E.  Co.  v.  Weiden,  429. 

Grand  Tower  Co.  v.  Phillips,  98. 

Grant  v.  Willey,  283,  285,  292. 

Gray  v.  Missouri  Eiver  Packet  Co.,  266. 

Gray  v.  Washington  Water  Power   Co.,  347. 

Grebert-Borgnis  v.  Nugent,  21,  42,  225. 

Greeley,  etc.  E.  Co.  v.  Yeager,  120. 

Green  v.  Gilbert,  237. 

Green  v.  Hudson  Eiver  E.  Co.,  414. 

Green  v.  Williams,  146. 

Greene  v.  Goddard,  77. 

Greenwall  Theatrical  Circuit  Co.  v.  Markowitz,  204. 

Green-Wheeler  Shoe  Co.  v.  Chicago,  E.  I.  &  P.  By.  Co.,  32,  50. 

Greer  v.  New  York,  9. 

Griffin  v.  Colver,  42,  72,  76,  225,  226. 

Griffith  v.  American  Coal  Co.,  60. 

Griffith  V.  Cole  Bros.,  444. 

Griggs  v.  Fleckenstein,  34,  41. 

Grimes  v.   Greenblatt,  380. 


TABLE  OF  CASES  467 


[SEFEEENCES  AEE  TO  THE  PAGES.] 

Grindle  v.  Eastern  Express  Co.,  71. 

Grosso  V.  Delaware,  L.  &  W.  E.  Co.,  414. 

Grove  v.  Youell,  9. 

Guetzkow  Bros.  Co.  v.  Andrews,  227. 

Guille  V.  Swan,  48. 

Gulf,  Colorado,  etc.  Ey.  Co.  v.  Hayter,  179. 

Gulf,  Colorado,  etc.  Ey.  Co.  v.  Overton,  181. 

Gulf,  ete.  Ey.  Co.  v.  Trott,  182. 

Gwynn  v.  Citizens  Tel.  Co.,  124,  134. 


Iladley  v.  Baxendale,  19,  41,  160,  207,  268. 

Hadley  v.  Heywood,  403. 

Hadwell  v.  Eighton,  30,  48. 

Hagan  v.  Providence,  etc,  E.  Co.,  125 

Hahn  v.  Bettingen,  282,  284. 

Hahn  v.  Delaware,  L.  &  W.  E.  Co.,  75. 

Hale  v.  Bonner,  170. 

Halesrap  v.  Gregory,  34. 

Hall  V.  Crowley,  99. 

Hall  V.  Jackson,  171,  172. 

Hall  V.  Western  Union  Tel.  Co.,  275. 

Ham  V.  Wisconsin,  etc.  Ey.  Co.,  430. 

Hamer  v.  Hathaway,  197. 

Hamlin  v.  Great  Northern  Ey.  Co.,  170,  171. 

Hammond  v.  Hannin,  214. 

Hampden  Paint  etc.  Co.  v.  Springfield,  ete.  R.  Co.,  429. 

Hanna  v.  Grand  Trunk  Ey.  Co.,  142. 

Hanna  v.  Sweeney,  355. 

Hanson  v.  Krehbiel,  370. 

Hanson  v.  Wittenberg,  229. 

Harbaugh  v.  Citizens  Tel.  Co.,  279. 

Harding  v.  Townsend,  421. 

Hargreaves  v.  Kimberley,  82. 

Harness  v.  Kentucky  Fluor  Spar  Co.,  242. 

Harrington   v.   Gies,   352. 

Harris  v.  McEeynolds,  386. 

Harrison  v.  Price,  402. 

Hartford  v.  Brady,  6. 

Hart-Parr  Co.  v.  Finley,  204. 

Hartpenee  v.  Rodgers,  409. 

Hartshorn  v.  Chaddock,  310. 

Hartz  V.  Hartford  Faience  Co.,  36,  447. 

Hasbrouck  v.  New  York  Central  etc.  R.  Co.,  142. 

Haslam  v.  Galena,  etc.  E.  Co.,  427,  428. 

Hassett  v.  Carroll,  370,  371. 


468  TABLE  OF  CASES 

[REFEEENCES  ABE  TO  THE  PAGES.] 

Hatch  V.  Potter,  371. 

Haupt  V.  Vint,  259. 

Hauser  v.  Griffith,  121. 

Haven  v.  Beidler  Mfg.  Co.,  Ill,  114. 

Hawk  V.  Eidgway,  386. 

Hayden  v.  Vreeland,  301. 

Hayes  v.  Eailroad  Co.,  317. 

Haynea  v.  Nowlin,  406. 

Hays  V.  Western  Union  Tel.  Co.,  279. 

Hayward  v.  Leonard,  206. 

Hazard  v.  Israel,  125. 

Hazelton  v.  Week,  323. 

Head  v.  Hargrave,  244. 

Heasley  v.  Nichols,  297. 

Heavilon  v.  Kramer,  243. 

Hegenmyer  v.  Marks,  256. 

Hegerich  v.  Keddie,  418. 

Heikkala  v.  Isaacson,  40. 

Hemminger  v.  Western  Assurance  Co.,  204,  205. 

Henderson  v.  McReynolds,  386. 

Hendle  v.  Geiler,  137. 

Heneky  v.  Smith,  130, 

Henning  v.  Western  Union  Tel.  Co.,  126, 

Henry  v.   Cherry,  411. 

Herbener  v.  Crossan,  378. 

Herriman  v.  Layman,  298. 

Herron  v.  Western  Union  Tel.  Co.,  276,  277. 

Hewitt  V.  Prime,  393. 

Hewitt  V.  Steele,  80, 

Hichhorn  v.  Bradley,  75. 

Hickey  v.  Baird,  115. 

Higgins  V.  Butcher,  414,  415. 

Hightower  v.  Henry,  77. 

Hill  V.  Kimball,  178,  184. 

Hill  V.  Palmer,   261. 

Hill  V.  United  Life  Ins.  Association,  249. 

Hillman  v.  Star  Pub,  Co.,  411. 

Hirschkovitz  v.  Pennsylvania  R.  Co.,  420. 

Hively  v.  Golnick,  284,  300. 

Hoadley  v.  Watson,  121. 

Hoag  V.  Lake  Shore,  etc,  E,  Co.,  23,  51. 

Hoagland  v.  Segur,  104. 

Hobbs  V,  London  &  S.  W.  By.  Co.,  22,  44,  185,  270. 

Hochster  v.  De  la  Tour,   203. 

Hodges  V.  Thayer,  216,  217. 

Hodgkins  v.  Price,  311. 

Hodgkinson   v.   Hodgkinson,  406. 


TABLE  OF  CASES  469 


[eefeeences  are  to  the  pages.] 

Hoffman  v.  King,  51. 

Holden  v.  Freedman's  Savings,  etc.  Co.,  195. 

Holleman  v.  Harward,  351. 

HoUenbeck  v.  Hall,  375. 

Hollingsworth   v.  Des  Moines,  430. 

Holloway  v.  White-Dunham  Shoe   Co.,  166. 

HoUyday  v.  The  Steamer  David  Beeves,  419. 

Holmes  v.  O.  &  C.  Ry.  Co.,  414. 

Holmes  v.  Wilson,  313. 

Holt  v.  United  Security,  etc.  Co.,  204. 

Holton  V.  Daly,  417. 

Holtz  v.  Dick,  406. 

Homan  v.  Franklin  County,  357. 

Hook  v.  George,  296, 

Hooten  v.  Barnard,  111. 

Hooyman  v.  Reeve,  34. 

Hopkins  v.  Atlantic  &  St.  L.  R.  R.,  351. 

Hopkins  v.  Lee,  215. 

Horn  V.  Smith,  40. 

Home  V.  Midland  Ry.,  268. 

Horton  v.  Seaboard  Air  Line  Ry.  Co.,  438. 

Hosmer  v.  Wilson,  67,  204. 

Hossler   v.   Trump,   244. 

Hot  Springs  Lumber  &  Mfg.  Co.  v.  Revercomb,  6. 

Houser  v.  Pearce,  240. 

Howard   v.   Daly,   209. 

Howe  V.  Stevens,  115. 

Howe  Machine  Co.  v.  Bryson,  79,  150. 

Howland  v.  Vincent,  4,  6. 

Hewlett  V.  Tuttle,  120. 

Hoy  V.  Gronoble,  131. 

Huber  v.  Zeiszler,  384. 

Huckle  V.  Money,  89,  120. 

Hull  V.  Berkshire  St.  Ry.  Co.,  47. 

Hulley  V.  Moosbrugger,  445. 

Hunt  V.  Crane,  258. 

Hunt  V.  D'Orval,  186. 

Hurd  V.  Hubbell,  330,  331. 

Hurlbut   V.   Hardenbrook,  378. 

Hurst  V.  Detroit  City  Ry.  Co.,  418. 

Hutchins  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  425. 

Hutton  V.  Murphy,  159. 

Hyatt  V.  Adams,  173,  351,  414. 


Illinois  Central  R.  Co.  v.  Baches,  421,  424. 
Illinois  Central  R.  Co.  v.  Bailey,  52. 


470  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Illinois  Central  R.  Co.  v.  Barron,  418. 

Illinois  Central  R.  Co.  v.  Cobb,  etc.  Co.,  68,  225. 

Illinois  Central  E.  Co.  v.  Gheen,   64. 

Illinois  Central  E.  Co.  v.  Mizell,  57. 

Illinois  Central  E.  Co.  v.  Southern  Seating,  etc.  Co.,  43,  102,  268. 

Illinois  Mutual  Fire  Ins.  Co.  v.  Andes  Ins.  Co.,  248. 

Indianapolis  v.  Emmelman,  30. 

Indianapolis  v.  Gaston,  354. 

Indianapolis  Bleaching  Co.  v.  McMillan,  121. 

Indianapolis  etc.  E.  Co.  v.  Birney,  62. 

Indianapolis,  etc.  Ey.  Co.  v.  Rinard,  271. 

Indianapolis,  etc.  Ry.  Co.  v.  Stables,  348. 

Industrial  Commission  v.  Johnson,  447. 

International  Ocean  Tel.  Co.  v.  Saunders,  277. 

Irby  V.  Wilde,  356. 

Irlbeck  v.  Bierl,  137. 

Irwin  V.  Dearman,  393,  394. 

Isaacs  V.  Davies,  239. 

labam  v.  Dow,  25. 


Jackson  v.  Loomis,  311. 

Jacksonville,  etc.  Ry.  Co.  v.  Peninsular  etc.  Co.,  332. 

Jacksonville  &  S.  E.  Ry.  Co.  v.  "Walsh,  429. 

Jacoby  v.  Stark,  283,  298. 

Jansen  v.  Minneapolis,  etc.  Ry.  Co.,  175. 

Jansen  v.  Williams,  256,  258. 

Jaskolski  v.  Morawski,  305. 

Jaquith  v.  Hudson,  100,  105. 

Jaynes  v.  Jaynes,  406. 

J.  E.  Dunn  &  Co.  v.  Smith,  170. 

Jeffers  v.  Johnson,  255. 

Jefferson ville  v.  Rogers,  128. 

Jefts  V.  York,  259. 

Jemo  V.  Tourist  Hotel  Co.,  1. 

Jenkins  v.  Pennsylvania  R.  Co.,  77,  112. 

Jenness  v.  Simpson,  405. 

Jewett  v.  Brooks,  201,  211. 

Jewett  V.  Whitney,  111,   321. 

Jex  V.  Straus,  388. 

J.  M.  James  Co.  v.  Continental  National  Bank,  146,  187. 

Johnson  v.  Caulkins,  294. 

Johnson  v.  Connecticut  Co.,  75,  77. 

Johnson  v.  Fehsefeldt,  206. 

Johnson  v.  Hahn,  176. 

Johnson  v.  Jenkins,  295. 


TABLE  OF  CASES  471 

[references  are  to  the  pages,] 

Johnson  v.  McKee,  137. 

Johnson  v.  Pensacola,  etc,  R.  Co.,  266. 

Johnson  v.  Von  Kettler,  137. 

Johnson  v.  Wells,  348. 

Johnson  v.  Winona,  etc.  R.  Co.,  41. 

Johnston  v.  Great  Western  Ry.  Co.,  347. 

John  V.  Farwell  Co.  v.  Wolf,  330. 

Joliet  V.  Conway,  358. 

Joliet  Motor  Co.  v.  Industrial  Board,  448. 

Jones  V.  King,  115. 

Jones  V.  Xiamon,  127. 

Jones  V.  Texas,  etc.  R.  Co.,  171. 

Jones  &  Adams  Co.  v.  George,  358,  359. 

Jopling  V.  Bluefield  Waterworks  Co.,  124. 

Jordan  v.  Benwood,  9. 

Jordan  v.  Middlesex,  350. 

Jordan  v.  St.  Paul,  M.  &  M.  R.  Co.,  5. 

Joseph  V.  Naylor,  405. 

Joseph  Schlitz  Brewing  Co.  v.  Compton,  312,  314,  343,  344. 

Josling  V.  Irvine,  223. 

J.  &  P.  Coats,  In  re,  447. 

Judice  V.  Southern  Pac.  Co.,  150. 

Jutte  V.  Hughes,  346. 


Kadish  v.  Young,  67. 

Kansas  City  v.  Morse,  429. 

Kansas  City,  etc.  R.  Co.  v.  Eagan,  358. 

Kansas  City  Southern  R.  Co.  v.  Leslie,  440. 

Kansas  Pacific  Ry.  Co.  v.  Mihlman,  313. 

Katz  V.  Bedford,  206. 

Katz  V.  Wolf,  77. 

Keeble  v.  Keeble,  101,  108. 

Keightlinger  v.  Egan,  49. 

Keith  V.  De  Bussigney,  62. 

Keithsburg,  etc.  R.  Co.  v.  Henry,  430,  433. 

Kellett  V.  Robie,  294. 

Kelley  v.  New  York,  N.  H.  &  H.  R.  Co.,  351,  353. 

Kelly  V.  Cunningham,  157. 

Kelly  V.  Renfro,  297,  298. 

Kelso  V.  Marshall,  231. 

Kemble  v.  Farren,  101,  102,  103,  107. 

Kendall  v.  Dunn,  297,  298. 

Kendrick  v.  McCrary,  394,  395. 

Kennebec  Water  District  v.  Waterville,  430. 

Kennedy  v.  Fidelity  &  Casualty  Co.,  253. 


472  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Kennedy  v.  Standard  Sugar  Refinery,  423. 

Kent  County  Agricultural  Society  v.  Ide,  320. 

Kemochan  v.  New  York  Bowery  Fire  Ins.  Co.,  251. 

Keyes  v.  Minneapolis  &  St.  L.  Ey.  Co.,  184. 

Keys  V.  Pittsburg  &  W.  Coal  Co.,  320,  326. 

Kid  V.  Mitchell,  333. 

Kieman  v.  Heaton,  323,  324. 

Kies  V.  Binghampton  R.  Co.,  112. 

KifF  V.  Youmans,  137. 

Kilpatrick  v.  Haley,  126. 

Kimberley  v.  Howland,  183. 

King  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  85, 

King  V.  Franklin,  338. 

King  V.  State,  etc.  Ins.  Co.,  250. 

King  V.  Steiren,  259. 

King  V.  Viscoloid  Co.,  446. 

Kippenbrock  v.  Wabash  R.  Co.,  439. 

Kline  v.  Kline,  175,  364. 

Klopfer  V.  Bromme,  121. 

Knickerbocker  Ice  Co.  v.  Gardiner  Dairy  Co.,  124. 

Knight  V.  Wilcox,  396. 

Knowlton  v.  New  York,  etc.  R.  Co.,  85. 

Knoxville  Traction  Co.  v.  Lane,  117. 

Kolka  V.  Jones,  378. 

Kountz  V.  Kirkpatrick,  223. 

Kramer  v.  Perkins,  114. 

Krom  V.  Schoonmaker,  124. 

Krug  V.  Pitass,  129,  367,  375. 

Krug  V.  Ward,  380. 

Kuhn  V.  Chicago,  etc.  Ry.  Co.,  121. 

Kujek  V.  Goldman,  392. 

Kunkle  v.  Wherry,  98. 

Kurtz  V.  Frank,  297. 


Laidlaw  v.  Sage,  48,  72. 

Laird  v.  Pim,  218. 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Frantz,  167. 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Prentice,  117,  120,  127,  128,  135. 

Lamos  v.  Snell,  372. 

Lampert  v.  Judge  &  Dolph  Drug  Co.,  116,  122. 

Lancaster  v.  Hamburger,  5. 

Lancaster  v.  Providence  &  S.  S.  S.  Co.,  92. 

Langdon  v.  Union  Mutual  Life  Ins.  Co.,  249. 

Lanier  v.  Hammond  Lumber  Co.,  95. 

L»  Prelle  v.  Fordyce,  47. 


O^ABLE  OF  CASES  4t3 


[references  are  to  the  pages.] 

Laroeque  v.  Conheim,  301. 

Larson  v.  Chase,  171,  176. 

Lattimore  v.  Simmons,  301. 

Laubenheimer  v.  Mann,  99. 

Lawrence  v.  Cooke,  283. 

Lawrence  v.  Hagerman,  58,  187,  384. 

Lawrence  v.  Porter,  67,  225. 

Lazarus  v.  Ely,  339. 

Leahy  v.  Davis,  133. 

Leavitt  v.  Cutler,  304. 

Le  Beau  v.  Minneapolis,  St.  P.  etc.  E.  Co.,  31. 

Leeds  v.  Metropolitan  Gas  Light  Co.,  112,  147,  150. 

Lehigh  Valley  R.  Co.  v.  McFarlan,  431. 

Lehrer  v.  Elmore,  28. 

Leonard  v.  New  York,  etc.  Tel.  Co.,  20,  207. 

Lester  v.  Highland  Boy  Gold  Mining  Co.,  319. 

Levitzky  v.  Canning,  192,  194. 

Lewis  V.  Flint,  etc.  R.  Co.,  16,  46. 

Lewis  V.  Holmes,   169. 

L  'Herault  v.  Minneapolis,  348. 

Lightner  Mining  Co.  v.  Lane,  125. 

Lillibridge  v.  McCann,  33. 

Lillie  V.   Doubleday,  44. 

Liming  v.  Illinois  Central  R.  Co.,  33,  51. 

Lindh  v.   Great   Northern   Ry.   Co.,   170. 

Linn  v.  Duquesne,  348. 

Linsley  v.  Bushnell,  380. 

Liondale  Bleach,  etc.  Works  v.  Eiker,  450. 

Lipe  V.  Eisenlerd,  395. 

Lipman  v.  Atlantic,  etc.  R.  Co.,  178. 

Lipowicz  V.  Jervis,  378. 

Lipps  V.  Milwaukee  Electric,  etc.  Co.,  359. 

Liscom  V.  Boston  Mutual  Fire  Ins.  Co.,  249. 

Little  V.  Banks,  104. 

Little  V.  Phipps,  257. 

Lloyd  V.  Lloyd,  62. 

Loeher  v.  Kuechenmeister,  249. 

Lockwood  V.  New  York,  L.  E.  &  W.  R.  Co.,  419. 

Loeser  v.  Humphrey,  34,  35,  64. 

Loewe  v.  Lawlor,  211. 

Lohner  v.  Coldwell,  304. 

Loker  v.  Damon,  62,  64,  314,  324. 

Lombard  v.  Batcheldcr,  130. 

Lonergan  v.  Small,  176. 

Long  V.  Booe,  407. 

Long  V.  Trexler,  133. 

Longfellow  v.   Quimby,  317,  322. 


474  TABLE  OF  CASES 

[refebences  are  to  the  pages.] 

Loper,  In  re,  39. 

Lord  V.  Lord,  402. 

Lord  V.  Carbon   Iron   Mfg.    Co.,    138, 

Lord  V.  Maine  Central  R.  Co.,  132. 

Louisville,  C.  &  L.  R.  Co.  v.  Sullivan,  56. 

Louisville,  Evansville,  etc.  R.  Co.  v.  Wilson,  266. 

Louisville  &  N.  R.  Co.  v.  Beeler,  316. 

Louisvile  &  N.  R.  Co.  v.  Conner,  138. 

Louisville  &  N.  R.  Co.  v.  Eaden,  355. 

Louisville  &  N.  R.  Co.  v.  Ellis,  55. 

Louisville  &  N.  R.  Co.  v.  Garrett,  129. 

Louisville  &  N.  R.  Co.  v.  Hull,  170. 

Louisville  &  N.  R.  Co.  v.  Logan,  55. 

Louisville  &  N.  R.  Co.  v.  McElwain,  416. 

Louisville  &  N.  R.  Co.  v.  Ritehel,  122. 

Louisville  &  N.  R.  Co.  v.  Roth,  129. 

Louisville  &  N.  R.  Co.  v.  Wallace,   197. 

Louisville,  N.  A.,  etc.  R.  Co.  v.  Falvcy,  64. 

Louisville,  N.  A.,  etc.  R.  Co.  v.  Rush,  418. 

Louisville,  N.  O.  &  T.  Ry.  Co,  v,  Durfee,  56. 

Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Patterson,  94. 

Lowe  V.  Peers,  97,  105. 

Lowe  V.  Turpie,  200,  234,  235. 

Lowenstein  v.  Monroe,  380. 

Lowery   v.   Rowland,   9. 

Lucas  V,  Trumbull,  338. 

Luick  V.  Arends,  409, 

Lund  V.  Tyler,  137,  152. 

Luther  v,   Shaw,  290, 

Lynch  v.  Knight,  176,  367,  373,  374. 

Lynd  v.  Picket,  123. 

Lyons  v.  Erie  Ry.  Co.,  35, 

Lytton  V.  Baird,  187,  380,  383. 

M 

Mabin  v.  Webster,  283,  295, 

McCann  v.  Newark  &  S.  O.  R.  Co.,  30. 

McCardle  v.  McGinley,  378. 

McCarthy,  In  re,  449. 

McCarty  v.  Heryford,  297. 

McCollum  v.  Carlucci,  262, 

McCoUum  V.  Smith,  370. 

McConnel  v.  Kibbe,  84. 

Macon  &  W.  R.  Co.  v.  Johnson,  419, 

MeCormick  v.  Hamilton,  2.'^0. 

McCormick  v.  Western  Union  TpI.  Co.,  278. 


TABLE  OF  CASES  475 


[eepekences  are  to  the  pages.] 

McOormiek  Harvesting  Machine  Co.  v.  "Willan,  378. 

McCoullough  V.  Chicago,  K.  I.  &  P.  Ry.   Co.,  418. 

McCreery  v.  Green,  195. 

McCuIlough  V.  Greenfield,  386. 

McDcrmott  v.  Severe,  176. 

McDonald  v.  Seaife,   337,  339. 

MacElree  v.  Wolfersberger,  285,  286. 

McFadden  v.  Shanley,  224. 

McGann  v.  Hamilton,  311,  325. 

McGarrahan  v.  New  York,  N.  H.  &  H.  E.  Co.,  34,  64. 

McGee  v.  Wineholt,  234. 

McGinnis  v.  Knapp,  367. 

McGinnis  v.  Studebaker  Corporation,  165. 

McGregor  v.  Kilgore,  267. 

MeGuckin  v.  Milbank,  220. 

McHose  V.  Fulmer,  42. 

McHugh  V.  Grand  Trunk  Ry.  Co.,  422. 

Mclntire  v.  Sholty,  124. 

Mcintosh  V.  Wales,  380,  384. 

Mack  V.  Patchin,  213. 

McKinley  v.  Williams,   256. 

McMahon  v.  Dubuque,  147,  320. 

McMahon  v.  Field,  44. 

McMullen  v.  Dickinson  Co.,  239,  243. 

McNamara  v.  Clintonville,  26,  44,  53. 

McNamara  v.  St.   Louis  Transit   Co.,  123. 

McNeer   v.   Norfleet,  390. 

McNieol,  In  re,  443. 

Macon  v.  Dannenberg,  63. 

Macon  &  W.  R.  Co.  v.  Johnson,  419. 

McWilliams  v.  Morgan,  311,  321,  325. 

Mahan  v.  Brown,  6. 

Mahoning  V.  E.  Co.  v.  De  Pascale,  137. 

Maisenbacker    v.    Society    Concordia,    120. 

Malcolm  v.  Louisville,  etc.  E.  Co.,  353. 

Malloy  V.  Bennett,  127. 

Mangum  v.  Ball,  258. 

Mann  Boudoir  Car  Co.  v.  Dupre,  36,  55. 

Marble  v.  Ross,  26. 

Margraf  v.  Muir,  213. 

Markham  v.  Eussel,  369,  370. 

Marsh  v.  Great  Northern  Paper  Co.,  50. 

Marsh  v.  McPherson,  16. 

Marshall   v.   Taylor,   398,  399. 

Martin  v.  Franklin  Fire  Ins.  Co.,  10. 

Martin  v.  Payne,  394. 

Martin  v.  Porter,  320,  326. 


476  TABLE  OF  CASES 

[refebences  are  to  the  pages.] 

Marvin  v.  Prentice,  191. 

Marzetti  v.  Williams,  200,  211. 

Maskery  v.  Lancashire  Shipping  C5o.,  Ltd.,  452. 

Masterton  v.  Brooklyn,  162,  199,  201,  202,  203,  226. 

Masterton  v.  Mt.  Vernon,  72,  79. 

Matheis  v.   Mazet,   187,  405. 

Matthews  v.  Warner,  422. 

Mattson  v.  Minnesota,  etc.  R.  Co.,  30,  48. 

May  V.  Crawford,  108. 

Maye  v.  Yappan,  320,  327. 

Mayer  v.  Walter,  379. 

Mayor  of  Brunswick  v.  Aetna  Indemnity  Co.,  102. 

Mayor  of  Lynn  v.  Mayor  of  London,  144. 

Meacham  v.  Fitchburg  K.   Co.,   432. 

Meadville  First  National  Bank  v.  New  York  Fourth  National  Bank,  257. 

Meagher  v.  Driscoll,  28,   136,  181. 

Mehrhoff  v.  Mehrhoff,  406. 

Meier  v.  Portland  Cable  Ey.  Co.,  137. 

Melvin  v.  Weiant,  375. 

Memphis,   etc.   R.   Co.   v.   Reeves,   32. 

Mentzer  v.  Western  Union  Tel.  Co.,  170,  277. 

Merest  v.  Harvey,  120,  131. 

Merrill  v.  Dibble,  115. 

Merrill  v.  Los  Angeles  Gas,  ete.   Co.,  347. 

Merrill  v.  Western  Union   Tel.   Co.,  280. 

Merritt  v.  Earle,  51. 

Messmore  v.  New  York  Shot  &  Lead  Co.,  43,  225. 

Metallic  Compression  Casting  Co.  v.  Fitchburg  R.  Co.,  56. 

Metropolitan  St.  R.  Co.  v.  Johnson,  351. 

Michael  v.  Dunkle,  400. 

Michaelis  v.  Michaelis,  122. 

Michigan  Central  R.  Co.  v.  Vreeland,  419,  440. 

Milhouse  v.  Southern  Ry.,  117. 

Miller  v.  American  Steel  &  Wire  Co.,  445. 

Miller  v.  Baltimore  &  O.  S.  W.  R.  Co.,  183. 

Miller  v.  Mariner's  Church,  62,  67,  70. 

Miller  v.  Rosier,  283,  296,  298. 

Milliken  v.  A.  Towle  &  Co.,  443. 

Milliken  v.  Long,  397. 

Mills  V.  Dow,  140,  141. 

Milner  v.  Bowman,  249. 

Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  26,  28,  33,  37,  40,  41. 

Minneapolis  Threshing  Machine  Co.  v.  McDonald,  157. 

Minneapolis  Threshing  Machine  Co.  v.  Regier,  380. 

Mississippi,  etc.  Boom  Co.  v.  Patterson,  428. 

Missouri,  K.  &  T.  R.  Co.  v.  Haines,  429. 

Mitchell  v.  Billingsley,  319. 


TABLE  OF  CASES  477 


[references  are  to  the  pages.] 

Mitchell  V.  Bureh,  158,  336. 

Mitchell  V.  Rochester  Ry.  Co.,  179,  ISO. 

Moffatt  V.  Tenney,  422. 

Moffitt-West  Drug  Co.  v.  Byrd,  223. 

Mondamin  Meadows  Dairy  Co.  v.  Brudi,  107. 

Monmouth  Park  Ass'n  v.  Wallis  Iron  Works,  101. 

Montgomery  &  E.  Ry.  Co.  v.  Mallette,  175. 

Moore  v.  Meagher,  367,  376. 

Moran  v.  Dawes,  395. 

Moran  v.  New  York  City  Ry.  Co.,  350. 

Morgan  v.  Bliss,  388. 

Morgan  v.  Muench,  283,  286,  303,  305. 

Morgan  v.  Segenfelter,  250. 

Morgan  v.  Southern  Pacific  Co.,  418. 

Morning  v.  Long,  403. 

Morrill  v.  Palmer,  390. 

Morris  v.  Duncan,  124. 

Morris  v.  Lachman,  372. 

Morris  v.  Phelps,  218. 

Morse  v.  Hutchins,  389. 

Moulton  V.  Newburyport  Water  Co.,  428. 

Mulchey  v.  Washburn  Car-Wheel  Co.,  423. 

Muller  V.  McKesson,  49. 

Munro  v.  Pacific  Dredging,  etc.  Co.,  418. 

Murphy  v.  Fondulac,  111,  321. 

Murphy  v.  MeGraw,  157. 

Murphy  v.  United  States  Fidelity,  etc.  Co.,  100. 

Mutual  Benefit  Life  Ins.  Co.  v.  Cummings,  249,  251. 

Mutual  Reserve  Fund  Ass'n  v.  Ferrenbach,  248. 

Myers  v.  Turner,  81. 

N 

Nail  V.  Taylor,  52. 

Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Miller,  139. 

Natchez  Ins.  Co.  v.  Buckner,  249. 

National  Bank  of  Commerce  v.  New  Bedford,  331. 

National  Copper  Co.  v.  Minnesota  Mining  Co.,  314. 

Negley  v.  Cowell,  323. 

Nelson  v.  Big  Blackfoot  Milling  Co.,  325. 

Nelson  v.  Kellogg,  146. 

Nelson  v.  Plimpton,  etc.  Co.,  208. 

Nevin  v.  Pullman  Palace  Car  Co.,  270. 

Nevins  v.  Nevins,  409. 

New  v.  McKechnie,  40. 

Newcomb  v.  New  York  Central  &  H.  R.  R.  Co.,  46. 

Newell  V.  Whitcher,  176,  184, 


478  TABLE  OF  CASES 

[references  are  to  the  pages.] 

New  Orleans,  etc.  Ry.  Co.  v.  Statham,  124. 

New  Salem  v.  Eagle  Mill  Co.,  84. 

New  York  Central  R.  Co.  v.  Winfield,  441. 

New  York  Life  Ins.  Co.  v.  Pope,  234. 

Niagara  Oil  Co.  v.  Ogle,  344,  o45. 

Nichols  V.  Nichols,  406. 

Nickleson  v.  Stryker,  395. 

Nisbet  V.  Rayne  &  Burn,  443,  450. 

Nitram   Co.  v.   Creagh,  451. 

Nixon  V.  Cutting  Fruit-Packing  Co.,  197. 

Noice  V.  Brown,  394,  395. 

Norfolk  &  W.  Ry.  Co.  v.  A.  C.  Allen  &  Sons,  87. 

Northern  Pacific  R.  Co.  v.  Babcock,  142. 

Northern  Pacific  &  M.  R.  Co.  v.  Forbis,  429. 

Northern  Trust  Co.  v.  Grand  Trunk  Western  R.  Co.,  94. 

Northwestern  Equipment  Co.  v.  Sofe,  116. 

Northwestern  Terra  Cotta  Tile  Co.  v.  Caldwell,  107. 

Norton  v.  Consolidated  Ry.  Co.,  66. 

Nott   V.  Stoddard,  370. 

Nye  &  Schneider  Co.  v.  Snyder,  157. 


O'Brien  v.  Loomis,  124. 

Ocean  S.  S.  Co.  v.  Williams,  158. 

O'Gara  v.  St.  Louis  Transit  Co.,  154. 

Ogborn  v.  Francis,  393. 

Ogden  V.  Lucas,  78. 

Ohio,  etc.  Ry.  Co.  v.  Dickerson,  354, 

Ohio,  etc.  Vault  Co.  v.  Industrial  Board,  443. 

Ohio  &  M.  R.  Co.  V.  Cosby,  352 

Old  Colony,  etc.  R.  Co.  v.  County  of  Plymouth,  431,  433. 

Oleson  V.  Brown,  340. 

Oliver  v.  Holt,  87. 

O'Meara  v.  Russell,  180. 

O'Neal  V.  Bainbridge,  219. 

Oriflamme,  The,  347. 

O'Rourke  v.  Citizens'  St.  Ry.  Co.,  271. 

Osborne  v.  Grand  Trunk  Ry.  Co.,  142. 

Osier  V.  Walton,  137. 

Osmun  V.  Winters,  283. 

Ostrom  V.  San  Antonio,  129. 

Ottawa  Gas  Light  Co.  v.  Graham,  159. 

Outcalt  V.  Burling,  11. 


Pacific  Coast  Casualty  Co.  v.  Pillsbury,  446. 
Pack  V.  Mayor  of  New  York,  419. 


TABLE  OF  CASES  479 


[references  are  to  the  pages.] 

Page  V.  Chicago,  M.  &  St.  P.  Ky.  Co.,  434, 

Page  V.  Eobinson,  9,  12. 

Palmer  v.  Andrews,  294. 

Palmer  v.  Crook,  403. 

Palmer  v.  Winston-Salem  E.  Co.,  137. 

Parit  V.  Wallis,  98. 

Park  V.  Northport  Smelting  Co.,  315. 

Parker  v.  Russell,  201. 

Parker-Washington  Co.  v.  Chicago,  106. 

Parkhurst  v.  Masteller,  380,  383. 

Parrott  v.  Chicago  Great  Western  Ry.  Co.,  321. 

Parsons   v.    Trowbridge,    295,    304, 

Pasewalk  v.  Bollman,  254. 

Pasley  v.  Freeman,  4. 

Patterson  v.  Blatti,  347. 

Patterson  v.  New  Orleans,  etc.  Co.,  121. 

Patterson  v.  Old  Dominion  S.  S.  Co.,  271. 

Paul  V.  Cragnaz,  160. 

Paul  V.  Slason,  114. 

Pavesich  v.  New  England  Life  Ins.  Co.,  411,  412,  413. 

Pearce  v.  Staee,  291. 

Pearson  v.  Ryan,  196. 

Pearson  v.  Williams'  Administrators,  105. 

Peck  V.  Clark,  111. 

Peckham  Iron  Co.  v.  Harper,  3P2. 

Peek  V.  Derry,  389. 

Peek  V.  Northern  Pacific  Ry.  Co.,  112. 

Peel  V.  Atlanta,  5. 

Peerless  Machine  Co.  v.  Gates,  338. 

Peerson  v.  Ashcraft  Cotton  Mill^.,  378. 

Penn  Gas  Coal  Co.  v.  Versailles  Fuel  Gas  Co.,  429. 

Pennsylvania  R.  Co.  v.  Books,  358,  359. 

Pennsylvania  R.  Co.  v.  Goodman,  418. 

Pennsylvania  R.  Co.  v.  Lilly,  419. 

Pennsylvania  R.  Co.  v.  Roy,  358. 

Pennsylvania  R.  Co.  v.  Wabash,  etc.  R.  Co.,  16,  46. 

Penny  v.  Atlantic  Coastline  R.  Co.,  15. 

People's  Ice  Co.  v.  Steamer  Excelsior,  74. 

Peoria  Bridge  Ass'n  v.  Loomis,  167. 

Perrine  v.  Serrell,  157. 

Peters  v.  Garth,  374. 

Peters  v.  McKeon,   214. 

Peterson  v.  Western  Union  Tol.  Co.,  90,  91,  374. 

Phelps  V.  Bergers,  409. 

Phillips  v.  Dickerson,  183. 

Phillips  V.  Hoylo,   176. 

Phillips  V.  London  &  S.  W.  R.  Co.,  90,  91,  152,  354. 


48d  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Phillips  V.  Phillips,  78. 

Phillips  V.  Thomas,  409. 

Pickett  V.  Crook,  132. 

Pierce  v.  Benjamin,  339. 

Pierce  v.  Fuller,  99. 

Piero  V.  Southern  Express  Co.,  132, 

Pigeon  V.  Employers'  Liability  Assurance  Corp.,  Ltd.,  443. 

Pilmer  v.  Boise  Traction  Co.,  38. 

Pinney  v.  Winchester,  323. 

Piper  V.  Hoard,  390. 

Pittsburg,  etc.  R.  Co.  v.  Lyon,  117. 

Pittsburg,  etc.  R.  Co.  v.  Powers,  358. 

Pittsburg,  etc.  R.  Co.  v.  Thompson,  354,  421. 

Plumb  V.  Campbell,  257. 

Plummer  v.  Eigdon,  216. 

Plunkett  V.  Meredith,  240. 

Poehlmann  v.  Kertz,  288,  300. 

Pollock  V.  Sullivan,  390. 

Pope  V.  Campbell,  208. 

Portsmouth  Ins.  Co.  v.  Brazee,  248. 

Postlethwaite  v.  Parks,  398. 

Potter  V.  Chicago,  etc.  R.  Co.,  422. 

Potts  V.  Imlay,  379. 

Powell  V.  Augusta  &  S.  R.  Co.,  350. 

Power  V.  Harlow,  347. 

Powers  V.  Council  Bluffs,  82,  312. 

Prentiss  v.  Shaw,  137,  138,  174. 

Press  Pub.  Co.  v.  Monroe,  121,  127,  128. 

Pressey  v.  Wirth,  26. 

Prettyman  v.  Williamson,  401,  403,  404. 

Price  V.  Price,  406. 

Priestly  v.  Northern  Indiana,  etc.  R.  Co.,  273. 

Primrose  v.  Western  Union  Tel.  Co.,  19,  43,  275,  276. 

Pritchard  v.  Edison  Illuminating  Co.,  343. 

Pruitt  V.  Cox,  397. 

Prussian  National  Ins.  Co.  v.  Lawrence,  252. 

Pugh  V.  London,  etc.  Ry.  Co.,  177. 

Pullman  Car  Co.  v.  Krauss,  114,  271. 

Pullman  Palace  Car  Co.  v.  Barker,  23,  36,  55. 

Pullman  Palace  Car  Co.  v.  Bluhm,  34,  64. 

Pumpelly  v.  Phelps,  214. 

Purcell  V.  St.  Paul  City  Ry.  Co.,  176,  178,  179. 

Purchase  v.  Seelye,  35. 

Puritan  Coke  Co.  v.  Clark,  206. 

Pye  V.  British  Automobile,  etc.  Syndicate,  102. 

Pym  V.  Great  Northern  Ry.  Co.,  423. 


TABLE  OF  CASES  481 

[eefekences  are  to  the  pages.] 


Radloff  V.  Haase,  106. 
Rafferty  v.  Missouri  Pacific  "R,  Co.,  421. 
Railroad  Co.  v.  Baches,  419. 
Railroad  Co.  v.  Barron,  425. 
Rains  v.  St.  Louis,  etc.  R.  Co.,  419. 
Raisor  v.  Chicago  &  A.  R.  Co.,  421. 
Ralston  v.  Wood,  254. 
Rambaut  v.  Irving  National  Bank,  114. 
Ramey  v.  Western  Union  Tel.  Co.,  122. 
Ramsdell  v.  Grady,  423. 
Ramsay  v.  Meade,  261. 
Ransom  v.  New  York  &  E.  R.  Co.,  150. 
Ray  V.  Parsons,  408,  409, 
Raynor  v.  Val.  Blatz  Brewing  Co.,  218. 
Ream  v.  Watkins,  259. 
Reardon  v.  San  Francisco,  5. 
Reed  v.  Detroit,  35. 
Reed  v.  Maley,  176. 
Reed  v.  New  York  &  R.  Gas  Co.,  327. 
Reed  v.  Provident  Life  Assurance  Society,  249. 
Rehling  v.  Brainard,  408. 
Reilly  v.  Sicilian  Asphalt  Paving  Co.,  85. 
Reiss  V.  Northway  Motor  Co.,  446. 
Renihan  v.  Wright,  170. 
Retan  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  355, 
Rettig  V.  Fifth  Ave.  Transportation  Co.,  34,  60. 
Reynolds  v.  Braithwaite,  324. 
Reynolds  v.  Chandler  River  Co.,  65. 
Rhad  V.  Duquesne  Light  Co.,  30,  47. 
Rice  V.  Des  Moines,  34. 
Rice  V.  Rice,  410. 
Richards  v.  Sanderson,  138. 
Richardson  v.  Eagle  Machine  Works,  258. 
Richardson  v.  Sioux  City,  419. 
Richardson  v.  Woehler,  109. 

Richmond  &  D.  R.  Co.  v.  Allison,   72,  152,  153. 
Richmond  &  D.  R.  Co.  v.  Norment,  168. 
Ricketts  v.  Chesapeake,  etc.  R.  Co.,  125. 
Rinehart  v.  Bills,  400,  406. 
Ring  V.  Cohoes,  47. 
Ringgold  V.  Haven,  272. 
Riss  v.  Messmore,  197. 
Robbins  v.  St.  Paul,  etc.  R.  Co.,  430. 
Roberson  v.  Rochester  Folding  Box  Co.,  411. 
Roberts  v.  Druillard,  289,  290. 
Bauer   Dam. — 31. 


482  TABLE  OF  CASES 

[eepeeences  are  to  the  pages.] 

Eoberts  v.  Pacific  Tel.  C5o.,  95. 

Eobertson  v.  Conklin,  etc.  Co.,  130. 

Robertson  v.  Graver,  285,  296. 

Eobertson  v.  Louisville  &  N.  R.  Co.,  272. 

Robinson  v.  Superior,  etc.  Co.,  125. 

Rochester  v.  Levering,  260. 

Rochester  v.  Seattle  R.  &  S.  Ry.  Co.,  420. 

Rockford,  etc.  R.  Co.  v.  Lynch,  65. 

Rockhold  V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  58. 

Rockwood  V.  Allen,  147. 

Rockwood  V.  Robinson,  9. 

Roehm  v.  Horst,  88,,  203. 

Roffmann  v.  Third  Ave.  Ry.  Co.,  340. 

Romberg  v.  Hughes,  338. 

Roper  v.  Clay,  294. 

Roper  v.  Greenwood,  446. 

Roper  v.  Johnson,  203. 

Rosenstock  v.  Tormey,  258. 

Ross  v.  Kerr,  378,  383. 

Ross  v.  Kohler,  387. 

Ross  v.  Leggett,  385,  386. 

Rucker  v.  Smoke,  127. 

Rildd  v.  Rounds,  407. 

Rudolph  v.  Pennsylvania,  etc.  E.  Co.,  430. 

Ruff  V.  Georgia  Southern  Ry.  Co.,  358. 

Russell  V.  Come,  351. 

Russell  V.  Kearney,  9. 

Ryan  v.  Dayton,  237. 

Rylands  v.  Fletcher,  26. 

8 

St.  Louis  V.  St.  Louia,  I.  M.  &  S.  Ry.  Co.,  431. 

St.  Louis,  A.  &  T.  Ry.  Co.  v.  Berry,  171. 

St.  Louis,  etc.  Ry.  Co.  v.  Ayres,  316. 

St.  Louis,  etc.  Ry.  Co.  v.  Hall,  123. 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  McWhirter,  154,  441. 

St.  Louis  S.  W.  Ry.  Co.  v.  Johnson,  64. 

St.  Louis  S.  W.  Ry.  Co.  v.  Thompson,  129. 

St.  Louis  S.  W.  Ry.  Co.  v.  White,  272. 

Salchert  v.  Reinig,  288. 

Salina  v.  Trosper,  348. 

Salladay  v.  Dodgeville,  65,  69. 

San  Antonio,  etc.  Ry.  Co.  v.  Long,  425. 

San  Diego  Land,  etc.  Co.  v.  Neale,  428. 

Sangamon,  etc.  R.  Co.  v.  Henry,  267. 

Sargent  &  Merrimac,  428. 


TABLE  OF  CASES  483 

[references  ABE  TO  THE  PAGES.] 

Saunders  v.  Gilbert,  122. 

Savannah  &  O.  Canal  Co.  v.  Bourquin,  312,  314,  325. 

Savannah,  etc.  Ey.  Co.  v.  Pritchard,  273. 

Savings  Bank  v.  Asbury,  234. 

Schaub  v.  Hannibal  &  St.  J.  E.  Co.,  418. 

Sehippel  v.  Norton,   121. 

Schlitz  Brewing  Co.  v.  Compton,  312,  313,  343,  344. 

Schmidt  v.  Durnham,  294. 

Sehnaitt  v.  Kurrus,  158. 

Schmitz  V.  St.  Louis,  etc.  E.  Co.,  178. 

Schrimpf  v.  Tennessee  Mfg.  Co.,  109,  241. 

Schriver  v.  Frawley,  124. 

Schumaker  v.  Heinemann,  165. 

Scott  v.  Dickson,  247. 

Scott  v.  Shepherd,  22,  36.  45. 

Sea  Board  Air  Line  Ey.  v.  Horton,  438,  439. 

Seamans  v.  Smith,  326. 

Sears  v.  Lyons,  120. 

Sears  v.  Nahant,  192. 

Sears  v.  Wegner,  390. 

Seattle  &  S.  F.  Ey.  etc.  Co.  v.  Maryland  Casualty  Co.,  254. 

Second  Congregational  Society  v.  Howard,  111. 

Seely  v.  Alden,  8,  124. 

Seidler  v.  Burns,  380,  381. 

Seitz  v.  Mitchell,  352. 

Sellars  v.  Kinder,  396. 

Selleck  v.  Janesville,  65,  69. 

Shaffer  v,  Austin,  364. 

Shannon  v.  Swanson,  400,  404,  405. 

Sharon  v.  Mosher,  392. 

Sharp  v.  Powell,  18. 

Shattuc  v.  McArthur,  370,  372. 

Shaw  v.  Nudd,  223. 

Shawhan  v.  VanNest,  67. 

Shawnee  Mill  Co.  v.  Postal  Tel.-Cable  Co.,  275,  276. 

Sheahan  v.  Collins,  372. 

Shell  Co.  V.  Industrial  Accident  Commission,  446. 

Shepherd  v.  Hampton,  223. 

Sherman  v.  Fall  Eiver  Iron  Works  Co.,  68. 

Sherman  v.  Hudson  Eiver  E.  Co.,  269. 

Sherman  v.  Indianapolis  T.  &.  T.  Co.,  74. 

Sherrod  v.  Langdon,  44. 

Sherry  v.  Schuyler,   339. 

Shields  v.  Louisville  &  N.  E.  Co.,  57. 

Shirt  v.  Calico  Printers'  Ass'n,  34,  60. 

Shores  v.  Brooks,  134,  138. 

Shrimf  v.  Tennessee  Mfg.  Co.,  109,  241. 


484  TABLE  OF  CASES 

[references  are  a?o  the  pages.] 

Shute  V.  Taylor,  103,  109. 

Sibley  v.  Marsh,  372. 

Sickra  v.  Small,  187,  372,  377. 

Sikes  V.  Tippins,  400. 

Silsbury  v.  McCoon,  333. 

Simmons  v.  Seaboard  Air  Line  E.  Co.,  186. 

Sinclair  v.  Stanley,  332. 

Singer  Mfg.  Co.  v.  Holdfodt,   128. 

Singer  Sewing  Machine  Co.  v.  Methvin,  353. 

Sipley  V.  Stickney,  257. 

Slack  V.  Joyce,  45. 

Slater  v.  Mexican  National  R.  Co.,  140,  142. 

Slaughter  v.  Denmead,  159. 

Slingerland  v.  International  Contiaeting  Co.,  111. 

Sloan  V.  Edwards,  45. 

Sloane  v.  Southern  California  Ry.  Co.,  179,  180. 

Sloss-S.  S.  &  I.  Co.  V.  Dickinson,  356. 

Slosson  V.  Beadle,  100. 

Small  V.  Lonergan,  364. 

Smith  V.  Bagwell,  121. 

Smith  V.  Bergenren,  104,  110. 

Smith  V.  Bolles,  389,  391. 

Smith  V.  Chicago  &  A.  R.  Co.,  350,  422- 

Smith  V.  Dunlap,  223. 

Smith  V.  Green,  20,  44. 

Smith  V.  Hockenberry,  402,  403. 

Smith  V.  Holcomb,  120,  139. 

Smith  V.  Lehigh  Valley  R.  Co.,  418. 

Smith  V.  Matthews,  376. 

Smith  V.  Meyers,  401. 

Smith  V.  Michigan  Buggy  Co.,  379. 

Smith  V.  Pelah,  49. 

Smith  V.  Sanborn  State  Bank,  172. 

Smith  V.  Smith,  407. 

Smith  V.  Strong,  217. 

Smith  V.  Sykes,  414,  415. 

Smith  V.  Whittlesey,  150,  151. 

Smith  V.  Woodfine,  170. 

Societe  Nouvelle  D'Armement  v.  United  States  S.  S.  Co.,  28,  29,  51. 

Somers  v.  Wright,  202,  226. 

Sondegard  v.  Martin,  121. 

Southard  v.  Eexford,  303. 

South  Buffalo  Ry.  Co.  v.  Kirkover,  427. 

Southern  Express  Co.  v.  Williamson,  307. 

Southern  Kansas  Ry.  Co.  v.  Pavcy,  351,  353. 

Southern  Kansas  Ry.  Co.  v.  Rice,  186. 

Southern  Pacific  Oo.  v.  Ammons,  183. 


TABLE  OF  CASES  485 

[references  are  to  the  pages.] 
Southern  Pacific  Co.  v.  Hetzer,  348. 

Southern  Pacific  Co.  v.  San  Francisco  Savings  Union,  430. 
Southern  Ky.  Co.  v.  Cartledge,  111. 
South-side  Passenger  Ky.  Co.  v.  Trich,  49,  59. 
Spade  V.  Lynn  &  Boston  E.  Co.,  28,  178,  180. 
Spain  V.  Oregon-Washington  E.  &  N.  Co.,  387. 
Speck  V.  Gray,  404. 
Spencer  v.  Simmons,  298. 
Sperier  v.  Ott,  181. 

Spokane  Truck  &  Dray  Co.  v.  Hoefer,  119, 120. 
Sponatski,  In  re,  26,  40,  60. 
Spoor  V.  Holland,  12. 
Sprague  v.  Craig,  285,  295. 
Spring  V.  Haskell,  267. 
Squire  v.  Western  Union  Tel.  Co.,  72. 
Stacy  V.  Dolan,  297. 
Stacy  V.  Portland  Pub.  Co.,  122. 
Stanton  v.  Louisville  &  N.  E.  Co.,  56. 
Stark  V.  Johnson,  400,  401. 
Stark  V.  Parker,  237. 
State  V.  Fox,  61. 
State  V.  Lott,  196. 

State  ex  rel.  Davis-Smith  Co.  v.  Clausen,  449. 
State  ex  rel.  Faribault  Woolen  Mills  Co.  v.  District  Court,  451. 
State  ex  rel.  Lowery  v.  Davis,  112. 
State  ex  rel.  Yaple  v.  Creamer,  448,  449. 
Stebbins  v.  Palmer,  301,  302. 
Steeher  v.  People,  40. 
Stephens  v.  Wider,  114. 
Stetlar  v.  Nellis,  138. 
Stevens  v.  Stevens,  328. 
Stevens  v.  Yale,  79,  112,  115. 
Stevenson  v.  Belknap,  398. 
Stewart  v.  Anderson,  285. 
Stewart  v.  Murphy,  219. 
Stewart  v.  Smith,  396. 
Stewart  v.  United  Electric  Light  Co.,  416. 
Stickney  v.  Allen,  333. 
Stiles  V.  White,  389. 

Stodghill  V.  Chicago,  B.  &  Q.  E.  Co.,  82,  312. 
Stoetzle  V.  Sweringen,  154. 
Stone  V.  Varney,  372. 
Stonegap  Colliery  Co.  v.  Hamilton,  322. 
Story  V.  Early,  372. 
Stoudenmire  v.  De  Bardeleben,  310, 
Stoudt  V.  Shepherd,  394,  396,  397. 
Stover  V.  Bluehill,  34, 


486  TABLE  OF  CASES 

[RETKRENCES  ABE  TO  THE  PAGES.] 

Stowe  V.  Buttrick,  236. 

Stowe  V.  Heywood,  176,  178. 

Strauss  v.  Meertief,  243. 

Strauss  v.  Meyer,  367. 

Strauss  v.  Mutual  Reserve  Fund  Life  Ass'n,  247. 

Strohm  v.  New  York,  Lake  Erie,  etc.  B.  Co.,  348. 

Stroud  V.  Smith,  132. 

Strout  V.  Joy,  212, 

Strumph  v.  Loethen,  87,  343. 

Stuart  V.  Western  Union  Tel.  Co.,  170. 

Sturm  V.  Consolidated  Coal  Co.,  349. 

Sullivan  v.  Baxter,  85. 

Sullivan  v.  McMillan,  67,  196,  242,  245. 

Sullivan  v.  Tioga  R.  Co.,  35. 

Sullivan  v.  Vicksburg,  etc.  R.  Co.,  92,  96. 

Summers  v.  Baumgard,  132. 

Summers  v.  Keller,  94,  123. 

Summerskill  v.  Vermont  Power,  etc.  Co.,  95. 

Sun  Life  Assurance  Co.  v.  Bailey,  128. 

Sun  Printing  &  Pub.  Ass'n  v.  Moore,  103,  109. 

Sutherland  v.  Wyer,  62,  67,  70,  209,  238. 

Sweeney  v.  Connaughton,  8. 

Sweeney  v.  Montana  Central  By.  Co.,  68. 

Swift  V.  Dickerman,  28,  187, 188. 

Swift  V.  Johnson,  422. 


Taber  v.  Hutson,  121. 

Tathwell  v.  Cedar  Rapids,  91. 

Taxicab  Co.  v.  Grant,  169. 

Tayloe  v.  Sandiford,  99. 

Taylor  v.  Hearst,  370,  376. 

Taylor  v.  Moseley,  369. 

Tedens  v.  Chicago  Sanitary  District,  427. 

Telfer  v.  Northern  R.  Co.,  420. 

Teller  v.  Bay  &  River  Dredging  Co.,  319. 

Tennessee  Mfg.  Co.  v.  James,  109,  241. 

Terre  Haute,  etc.  B.  Co.  v.  Buck,  34. 

Terre  Haute,  etc.  B.  Co.  v.  Vanatta,  89. 

Terry  v.  Jewett,  425. 

Terry  v.  New  Orleans,  etc.  B.  Co.,  56. 

Terwilliger  v.  Wands,  377. 

Texarkana  Gas,  etc.  Co.  v.  Orr,  133. 

Texas  &  P.  Ry.  Co.  v.  Pollard,  151. 

Texas  &  P.  By.  Co.  v.  White,  63,  64. 

Theiss  v.  Weiss,  223. 


TABLE  OF  CASES  487 


[references  are  to  the  paqss.] 

Thomas  v,  Dtiiiaway,  372. 
Thompson  v,  Powning,  372. 
Thorn  v.  Knapp,  303. 
Thrush  v.  FuUhart,  305. 
Tiee  v.  Munn,  36. 

Tilley  v.  Hudson  River  R.  Co.,  418. 
Tillotson  V.  Cheetham,  374. 
Times  Pub.  Co.  v.  Carlisle,  128. 
Tisdale  v.  Norton,  30,  52. 
Tobin  V.  Western  Union  Tel.  Co.,  276. 
Todd  V.  Gamble,  80,  231. 
Toledo  etc.  Ry.  Co.  v.  Pindar,  63. 
Tompkins  v.  Kanawha  Board,  12. 
Townsend  v.  New  York  Central,  etc.  R.  Co.,  127. 
Tradesman  Co.  v.  Superior  Mfg.  Co.,  70. 
Trammell  v.  Vaughan,  284,  285,  287. 
Trenton,  etc.  Co.  v.  Johnson,  247. 
Trigg  V.  St.  Louis,  etc.  R.  Co.,  151,  171. 
Tri-State  T.  &  T.  Co.  v.  Cosgrif,  113. 
Troy  V.  Cheshire  R.  Co.,  310,  312,  313. 
Troy  &  Boston  R.  Co,  v.  Northern  Turnpike  Co.,  429. 
Truitt  V.  Fahey,  240. 
Trull  V.  Granger,  218. 
Tubbs  V.  VanKleek,  288. 
Tuckwell  V.  Lrambert,  392. 
Tuff  V.  Warman,  38. 
Tufts  V.  Bennett,  111. 
Tullidge  V.  Wade,  395,  398. 
Turner  v.  Great  Northern  Ry.  Co.,  185,  270. 
Turner  v.  Hearst,  369. 
Turrell  v.  Jackson,  10. 
Tuttle  V.  Brown,  228. 
Tuttle  V.  Chicago,  R.  I.,  etc.  B.  Co.,  350. 
Tuttle  V.  Farmington,  35. 
Tyler  v.  Salley,  299,  300. 

U 

XJline  V.  New  York  Central  R.  Co.,  313. 
Underhill  v.  Agawan  Mutual  Fire  Ins.  Co.,  249. 
Unexcelled  Fireworks  Co.  v.  Polites,  230. 
Union  Depot  &  R.  Co.  v.  Smith,  386. 
Union  Fraternal  League  v.  Walton,  249. 
United  States  v.  Behan,  200. 
United  States  v.  Bethlehem  Steel  Co.,  101. 
United  States  Mortgage  Co.  v.  Henderson,  258. 


488  TABLE  OF  CASES 

[references  are  to  the  pages.] 


Valdenaire  v.  Henry,  389. 

Valente  v.  Weinberg,  204. 

Valentine  v.  Wheeler,  253,  254. 

VanBuren  v.  Digges,  99. 

VanDeusen  v.  Young,  317. 

Venner  v.  New  Dells  Lumber  Co.,  444,  451. 

Vermilya  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  310. 

Vicars  v.  Wilcocks,  30. 

Victorian  Rya.  Commissioners  v.  Coultas,  177,  179,  180. 

Vogel  V.  McAuliffe,  182. 

VoUmer  v.  Stregge,  404. 

Vooth  V.  MeEachen,  257. 

Vosburg  V.  Putney,  16,  36,  54. 

W 

Wabash  Printing  &  Pub.  Co.  v.  Crumrine,  121. 

Wade  V.  Herndl,  221,  341. 

Wadsworth  v.  Treat,  175. 

Waite  V.  Gilbert,  151. 

Waldron  v.  Waldron,  409. 

Wales  V.  Miner,  404. 

Wall  V.  Piatt,  320. 

Wallace  v.  Goodall,  317,  318. 

Wallace  v.  Knoxville  Woolen  Mills,  227. 

Walser  v.  Thies,  378. 

Walsh  V.  Chicago,  etc.  Ry.  Co.,  171. 

Walsh  V.  Fisher,  205. 

Walsh  V.  Locke  &  Co.,  448. 

Walsh  V.  Methodist  Episcopal  Church,  South,  106. 

Walsh  V.  New  York,  etc.  R.  Co.,  349. 

Ward's  Central,  etc.  Co.  v.  Elkins,  157. 

Ware  Bros.  Co.  v.  Cortland,  etc.  Co.,  210. 

Warren  v.  Mayer  Mfg.  Co.,  223. 

Wartman  v.  Swindell,  114. 

Washburn  v.  Oilman,  78. 

Washington  &  G.  R.  Co.  v.  Hickey,  351. 

Washington  Times  Co.  v.  Downey,  370,  371. 

Watkins  v.  Gale,  322. 

Watkinson  v.  Laughton,  267. 

Watriss  v.  First  National  Bank,  220. 

Watson  V.  Bridge,  158. 

Watson  V.  Dilts,  178. 

Watson  V.  Texas  &  P.  Ry.  Co.,  85. 

Watts  V.  Norfolk,  etc.  R.  Co.,  342. 


TABLE  OF  CASES  489 


[EEFISISNCES  ABE  TO  THE  PAGES.] 

Waufle  V.  McLellan,  384. 

Weaver  v.  Page,  382. 

Webb  V.  Portland  Cement  Mfg.  Co.,  144,  321. 

Weber  v.  Weber,  409. 

Weeks  V.  New  York,  etc.  K.  Co.,  272. 

Wehle  V.  Haviland,  330,  331. 

Weigel  V.  McCloakey,  387. 

Weir  V.  Union  Ey,  Co.,  272. 

Welch  V.  Ware,  73,  81,  120. 

Weleetka  Light  &  Water  Co.  v.  Burleson,  256,  257. 

Welge  V.  Jenkins,  289. 

Wells  V.  National  Life  Ass'n,  165. 

Wells  V.  Padgett,  170. 

Werthein  v.  Chicoutimi  Pulp  Co.,  200. 

Wesson  v.  Washburn  Iron  Co.,  342. 

West  V.  Western  Union  Tel.  Co.,  122. 

West  Chicago  St.  E.  Co.  v.  Carr,  350. 

Westcott  V.  Middleton,  186. 

Western,  etc.  E.  Co.  v.  Young,  347. 

Western  Union  Tel.  Co.  v.  Adams,  276. 

Western  Union  Tel.  Co.  v.  Brown,  125. 

Western  Union  Tel.  Co.  v.  Caldwell,  275. 

Western  Union  Tel.  Co.  v.  Collins,  280. 

Western  Union  Tel.  Co.  v.  Cunningham,  278. 

Western  Union  Tel.  Co.  v.  Du  Bois,  277,  280. 

Western  Union  Tel.  Co.  v.  Eubank,  276. 

Western  Union  Tel.  Co.  v.  Eyser,  128. 

Western  Union  Tel.  Co.  v.  Gahan,  277. 

Western  Union  Tel.  Co.  v.  Hall,  76. 

Western  Union  Tel.  Co.  v.  Hawkins,  141,  170. 

Western  Union  Tel.  Co.  v.  Henderson,  173. 

Western  Union  Tel.  Co.  v.  Hill,  170. 

Western  Union  Tel.  Co.  v.  Schriver,  278. 

Western  Union  Tel.  Co.  v.  Showers,  141,  143,  170. 

Western  Union  Tel.  Co.  v.  Watson,  275. 

Western  Union  Tel.  Co.  v.  Woflford,  69. 

Western  Union  Tel.  Co.  v.  Wood,  277. 

Westfield  v.  Mayo,  192. 

Westlake  v.  Westlake,  406. 

Weston  V.  Boston  &  M.  E.  Co.,  212. 

West  Skokie  Drainage  District  v.  Dawson,  430. 

West  Eiverside  Coal  Co.  v.  Maryland  Casualty  Co.,  254. 

Wetmore  v.  Green,  253,  255. 

Wetmore  v.  Mellinger,  379. 

Whalen  v.  Layman,  288. 

Wheatland  v.  Taylor,  98. 

Wheeler  v.  Hanson,  381< 


490  TABLE  OF  CASES 

[references  are  to  TB£  PAfiHS.] 

Whipple  V.  Fuller,  378,  380. 

White  V.  Dresser,  173. 

White  V.  Givens,  192. 

White  V.  Murtland,  130,  148,  397. 

White  V.  Sheffield,  etc.  St.  R.  Co.,  338. 

White  V.  Stanbro,  111,  113. 

White  V.  Webb,  13. 

White  V.  White,  409. 

White  V.  Yawkey,  322. 

Whitehead  v.  Ryder,  228. 

Whitehill  v.  Western  Union  Tel.  Co.,  278. 

Whitely  v.  Mississippi  Water  Power  Co.,  432. 

Whitford  v.  Panama  R.  Co.,  414. 

Whitman  v.  Boston,  etc.  R.  Co.,  429. 

Whitney  v.  Abbott,  256,  260. 

Wicker  v.  Hoppock,  147,  233. 

Wiest  V.  Electric  Traction  Co.,  420,  425. 

Wieting  v.  Millston,  34. 

Wiley  V.  McGrath,  339» 

Wilkinson  v.  Downton,  179. 

Wilcox  V.  Richmond  &  D.  R.  Co.,  171,  18L 

Willey  V.  Carpenter,  137. 

Williams  v.  Baldrey,  132. 

Williams  v.  Hill,  376. 

Williams  v.  Underbill,  28. 

Williams  v.  Vanderbilt,  273. 

Willis  V.  Morris,  311. 

Willis  V.  Noyes,  123. 

Willson  V.  Mayor  of  Baltimore,  104. 

Wilson  V.  Coulter,  407. 

Wilson  V.  Matthews,  333. 

Wilson  V.  Vaughn,  122. 

Wilson  V.  Wernwag,  72. 

Wilson  V.  Young,  137. 

Winch  V.  Mutual  Benefit  Ice  Co.,  104. 

Winchester  v.  Craig,  333. 

Windsor  v.  Oliver,  367,  375. 

Winnc  v.  Kelley,  219. 

Winthrop  v.  Carleton,  141. 

Wirsing  v.  Smith,  121. 

Witcher  v.  Jones,  371. 

W.  K.  Syson  Timber  Co.  v.  Dickens,  336,  340. 

Wodnik  v.  Luna  Park  Amusement  Co.,  31. 

Wolfe  V.  Howes,  208. 

Wood  V.  Gunston,  91. 

Wood  V.  Pennsylvania  E.  Co.,  59. 

Wood  V.  State,  98. 


TABLE  OF  CASES  491 


[RETEIU&NOES  ABE  TO  TH£  PAGES.] 

Wood  V.  Williamsburg,  327. 

Wooden  v.  Western  N.  Y.,  etc.  E.  Co.,  142. 

WoodhuU  V.  Rosenthal,  311. 

Woods  V.  Rock  Hill  Fertilizer  Works,  342,  346. 

Woodward  v.  Pickett,  9. 

Worrall  v.  Munn,  310. 

Worrell  v.  Kinnear  Mfg.  Co.,  231. 

Wort  V.  Jenkins,  120. 

Wright  V.  Bank  of  the  Metropolis,  334. 

Wright  V.  Beardsley,  172. 

Wright  V.  E.  E.  Bolles,  etc.  Co.,  322. 

Wright  V.  Mulvaney,  336. 

Wrightup  V.  Chamberlain,  193. 

Wyman  v.  Leavitt,  173,  174. 

Wyman  v.  Robinson,  98. 


Yates  V.  South  Kirkby,  etc.  Collieries,  445,  450. 

Yatsuyanagi  v.  Shimamura,  262. 

Yazoo  &  M.  V.  R.  Co.  v.  Consumers'  Ice,  etc.  Co.,  193. 

Yazoo  &  M.  V.  R.  Co.  v.  Cox,  15. 

Yorton  v.  Milwaukee,  etc.  R.  Co.,  66. 

Young  V.  Corrigan,  292. 

Young  V.  Harrison,  430. 

Youngblood  v.  South  Carolina  &  G.  R.  Co.,  358. 

Yundt  V.  Hartrunft,  400. 


Zabriskie  v.  Erie  R.  Co.,  444. 


INDEX 


[eefebences  aee  to  the  pages.] 

A 

ACTIONS— 

damage,  the  gist  or  not  the  gist  of  an  action,  144. 

distinction  between  tort  and  contract  as  to  causation,  19-29. 

possession,  based  upon,  311,  336-339. 
ACTUAL  DAMAGES— 

defined,  148. 
AGENCY,  256-260. 

in  general,  256. 

liability  of  agent  to  principal,  256,  260. 

liability  of  agent  to  third  person,  258. 

liability  of  principal  in  exemplary  damages,  125. 

principal's  liability  to  agent,  260, 
AGENT— 

principal's  liability  in  exemplary  damages  for  act  of,  125. 
AGGKAVATION,  136,  139. 

in  alienation  of  affections,  409. 

in  breach  of  promise  of  marriage,  286-292,  303,  304. 

in  false  imprisonment,  386. 

in  malicious  prosecution,  379. 

in  personal  injury,  355. 

in  right  of  privacy,  interference  with,  412. 

in  seduction,  397. 
ALIENATION  OF  AFFECTIONS,  406-410. 

in  general,  406. 

elements  of  compensation,  406-407,  410. 

mitigation,  407-408,  409-410. 

action  against  parents,  brothers  or  sisters  of  alienated  spouse,  408-409. 

exemplary  damages,  409. 

discretion  of  jury,  409. 
ALTEENATIVE  CONTRACTS— 

distinguished  from  liquidated  damages  and  penalty,  104-109. 
AMOUNT  OF  DAMAGES— 

in  general,  147. 
ASSAULT,  363-364. 

nature  of  wrong,  363. 

elements  of  damage,  363-364. 

493 


494  INDEX 

[references  are  to  the  pages.] 

ATTACHMENT,  WRONGFUL,  384. 
ATTRACTIVE  NUISANCE,  DOCTRINE  OF,  30. 
AVOIDABLE  CONSEQUENCES,  62-71. 

in  general,  62. 

remoteness  of,  63. 

duty  of  plaintiff  only  to  act  as  reasonable  man,  64. 

plaintiff  need  not  anticipate  defendant's  wrongful  act,  65. 

in  contracts  for  advertising  space,  70. 

in  contracts  of  employment,  66,  69. 

in  contracts  to  effect  insurance,  70. 

in  contracts  of  sale,  67,  69,  70,  224-225. 

in  contracts  to  transmit  messages,  69. 

of  personal  injury,  63,  65,  68,  69. 

of  torts  to  property,  62,  64,  65,  68. 

B 

BARGAINS,  166. 

BATTERY  AND  OTHER  PERSONAL  INJURIES,  347-362. 

elements  of  compensation,  347-349. 

injuries  to  a  married  woman,  349-353. 

when  damage  is  the  gist  of  the  action,  353. 

avoidable  consequences,  68-69,  354. 

mitigation,  354-355. 

aggravation,  355. 

exemplary  damages,  355. 

discretion  of  the  jury,  355-356. 

general  and  special  pleading,  356-358. 

evidence,  358-359. 

injury  to  child  before  birth,  no  right  of  action  in  child,  359-360. 

same,  no  right  of  action  in  child's  personal  representative  or  rela- 
tives, 360-362. 

causation,  44,  45,  46,  47,  48,  49,  52,  53,  54,  55,  56,  57,  58,  59,  60,  61. 

certainty  of  proof,  76-77,  79,  81. 

excessive  damages,  95, 

inadequate  damages,  95-96. 
BENEFITS— 

setting  off  against  damages  in  eminent  domain,  431-432. 
BOND— 

penal,  98. 

statutory  undertaking,  98. 
BREACH  OF  PROMISE,  282-305. 

in  general,  282. 

direct  pecuniary  loss,  283. 

loss  of  other  opportunities  to  marry,  283-284. 

injury  to  plaintiff's  health,  284-303. 

mental  suffering,  284-285,  302. 

affections  of  plaintiff,  injury  to,  285-286. 


INDEX  495 

[rEFEEENCES  ABE  TO  THE  PAGES.] 

BREACH  OF  PROMISE— Cont. 
remote  damage,  286. 
aggravation,  286-292,  303,  304. 
mitigation,  292-298,  304. 

wealth  of  defendant,  admissibility  of  evidence  of,  298-299. 
excessive  damages,  299,  305. 
general  and  special  damages,  299-301. 
actions  against  or  by  personal  representative,  301-302. 

C 

CARRIERS,  264-273. 

introductory,  264-265. 

failure  of  shipper  to  deliver  goods  for  shipment,  265-266. 

compensation  of  the  carrier  of  goods,  266. 

failure  to  receive  and  carry  goods,  266-267. 

loss  or  destruction  of  goods  while  in  hands  of  carrier,  267,  272. 

delay  in  the  carriage  of  goods,  267-269,  272,  273. 

mitigation  of  damages,  269. 

failure  or  refusal  to  carry  passenger,  269-270. 

delay  in  carriage  of  passenger,  270-273. 

wrongful  refusal  to  furnish  accommodations  to  would-be  passenger, 
270-271. 

wrongful  expulsion,  271. 

personal  injuries  to  passenger,  271-272. 

misdirection  of  passenger,  272. 

liability  for  baggage,  272. 
CAUSATION,  See  Cause  and  Result. 
CAUSE  AND  RESULT,  14-61. 

in  general,  14-15. 

direct  and  consequential  damages,  16-17. 

proximate  and  remote  damages,  17-18. 

causation  in  contract,  19-21,  41-45. 

causation  in  tort,  21-29,  45-61. 

intervening  cause,  29-37. 

last  clear  chance,  37-38. 

proximate  cause  under  industrial  and  civil  damage  statutes,  38-40. 

proximate  cause  a  question  for  the  jury,  40-41. 

avoidable  consequences  not  proximate,  63. 

in  mental  suffering,  169,  171,  172,  173,  175,  177,  178,  181. 

proximate  cause  in  various  types  of  action,  see  appropriate  heads, 
e.  g.  Eminent  Domain,  Fraud. 
CAUSE  OF  ACTION— 

damage,  when  the  gist  of,  2,  144,  308. 

entirety  of,  82-88. 
CERTAINTY  OF  PROOF,  72-81. 

in  general,  72. 

absolute  certainty  not  required,  73-75, 


496  INDEX 

[references  are  to  the  pages.] 

CEBTAINTY  OF  PROOF— Cont. 

not  to  be  confused  with  proximity  of  cause,  75, 

contracts  of  employment,  79. 

contracts  for  advertising,  79. 

contracts  to  pay  money,  77. 

contracts  to  supply  water,  78. 

contracts  for  stock,  79. 

fraud,  81. 

where  negligence  of  parties  is  concurrent,  77. 

nuisance,  77,  78,  80. 

personal  injury,  damage  to  earning  capacity,  79,  80. 

same,  where  plaintiff's  services  are  joint,  81. 

personal  injury,  prospective  damage,  76. 

profits,  75,  76,  77,  79,  80,  81. 

sale,  contracts  of,  75,  79,  80. 

telegrams,  contracts  to  transmit,  76,  80. 

trespass  to  realty,  77,  78. 
CIPHER  DESPATCHES,  275. 
CIVIL  DAMAGE  ACTS— 

damages  under,  38. 
COMMERCIAL  PAPER,  233. 

COMPENSATION  AND  ITS  ELEMENTS,  Part  II,  147-197. 
COMPENSATION  IN  GENERAL,  147-149. 
COMPENSATORY  DAMAGES,  147-149. 

defined,  148. 

amount  of,  147. 

pecuniary  condition  of  parties  affecting,  148. 
CONFLICTS  OF  LAWS,  140-143. 

in  general,  140. 

in  contracts,  140. 

in  contracts  to  transmit  telegrams,  141. 

in  torts,  141,  142. 

in  wrongful  death,  142. 
CONSIDERATION,  FAILURE  OF,  207-208. 
CONTEMPLATION  OF  PARTIES— 

required  as  to  consequential  elements  in  contract,  19-20,  41-45    199- 
201. 
CONTRACT,  Part  HI,  199-305. 

in  general,  199-212. 

general  principles,  199-201. 

entirety  of  recovery,  201. 

profits,  201-202. 

anticipatory  breach,  202-204. 

partial  performance,  204-206. 

complete  performance,  206-207. 

direct  and  consequential  damages,  207. 

damages  upon  failure  of  consideration,  2Q7-208, 


INDEX  497 

[references  ABE  TO  THE  PAGES.] 

CONTRACT— Cont. 

both  parties  in  default,  208. 

non-pecuniary  elements,  208-209. 

avoidable  consequences,  209-210. 

interference  with,  a  tort,  210-211. 

indemnity,  253-255. 

insurance,  246-252. 

labor,  236-245. 

money,  to  pay  or  lend,  233-235. 

partnership,  261-263. 

personalty,  relating  to,  222-232. 

profits,  160-166,  201. 

realty,  relating  to,  213-221. 

sales,  222-232. 

services,  236-245, 

telegraph,  274-278. 

work,  labor,  and  services,  236-245. 
CONVERSION— 

return  of  chattel  in  mitigation,  338-339. 

value  in  actions  for,  330-335,  340-341. 
COSTS,  191. 
COUNSEL  FEES,  191. 
COVENANTS— 

in  conveyances  of  land,  216,  220. 
CRIMINAL  CONVERSION,  400-405/ 

in  general,  400-401. 

elements  of  compensation,  401. 

mitigation,  402-403,  405. 

similar  wrongs  by  others  and  actions  against  them  not  a  bar,  403-404. 

discretion  of  jury,  404, 

O 

DAMAGE— 

defined,  1. 

gist  of  action,  when,  2,  144,  308. 

imported,  when,  144. 

pecuniary,  2-3, 

non-pecuniary,  2-3. 

special,  342. 
DAMAGES— 

defined,  1. 

distinguished  from  damage,  1. 

compensatory,  147-149. 

conjectural,  72-75, 

consequential,  16-17, 

contract,  in,  19-21,  199-212. 

direct,  16-17. 


49$  INDEX 

[B£FISENC£S  ASE  TO  THE  PAGES.] 

DAMAGES— Cont. 

direct,  always  recoverable,  16, 

entire,  82,  86,  87,  88. 

excessive,  89-95. 

exemplary,  117-135. 

general,  145-146. 

liquidated,  97-110. 

nominal,  111-116. 

prospective,  82-85,  87. 

proximate,  17-18. 

remote,  17-18. 

special,  145-146. 

speculative,  72-75. 

torts,  in,  21-29. 
DAMNUM  ABSQUE  INJUEIA,  4-6. 

in  general,  4. 

instances,  4-6. 
DEATH  BY  WRONGFCL  ACT,  414-426. 

at  common  law,  414-415, 

under  modern  statutes,  415-420. 

one  action  or  two?  416,  423. 

where  statute  names  arbitrary  penal  sum,  420. 

mitigation,  420-421. 

evidence  of  the  poverty  of  the  plaintiff  usually  inadmissible,  421. 

certainty,  421-422. 

exemplary  damages,  422. 

abatement  of  the  action  through  death  of  the  sole  beneficiary,  422. 

elements  of  compensation  in  surviving  action,  422-423. 

elements  of  compensation  in  action  for  beneficiary,  423,  424,  425,  426. 
DECEIT— 

certainty,  391. 

conflict  of  authority  as  to  method  of  measuring  damages,  388-389. 

damage  the  gist  of  the  action,  388. 

exemplary  damages,  391. 

proximity,  391. 
DEFAMATION,  See  Slander  and  Libel. 
DELAY— 

liquidation  of  damages  for,  106,  107. 
DE  MINIMIS  NON  CURAT  LEX,  114. 
DESPATCHES,  TELEGRAPH,  See  Telegraph  Companies. 
DIRECT  DAMAGES,  16. 

defined,  16. 

general  rule  of,  16. 
DISCOMFORT— 

caused  by  nuisance,  343. 


INDEX  499 

[beteeences  abs  to  ths  faqzs.] 

DISCRETION  OF  JURY— 

control  of  court  over,  89-93. 

in  alienation  of  affections,  409. 

in  criminal  conversation,  404. 

in  exemplary  damages,  94. 

in  false  imprisonment,  387. 

in  personal  injury,  355-356. 

in  right  of  privacy,  412. 

in  slander  and  libel,  374. 
DISSOLUTION  OF  PARTNERSHIP,  261,  262. 
DOMESTIC   RELATIONS,   See   Seduction,   Criminal   Conversation,  and 

Alienation  of  Affections. 
DUTY— 

existence  of,  as  prerequisite  to  negligence,  176,  307. 

E 
EARNING  POWER,  152,  154. 

loss  of,  as  element  of  damage,  152,  154. 
EARNINGS,  LOSS  OF,  151. 
EJECTMENT,  311. 
ELEMENTS  OF  COMPENSATION,  Part  II,  147-197. 

bargains,  166. 

earning  power,  152,  154. 

expenses,  156-159. 

expenses  of  litigation,  191-194. 

inconvenience,  185-186. 

interest,  195-197. 

mental  suffering,  169-184. 

pain,  167-168. 

profits,  160-166. 

property,  155. 

reputation,  187-188. 

service,  loss  of,  189-190. 

time,  150. 

wages,  151. 
EMINENT  DOMAIN,  427-434. 

in  general,  427. 

value  of  land  taken,  427-429. 

difference  between  taking  of  fee  and  of  easement,  429-430. 

injuries  to  rest  of  tract,  430-431. 

remote,  speculative  and  contingent  damages,  431. 

entirety  of  recovery,  431. 

benefits,  setting  off,  431-432. 
EMPLOYERS'  LIABILITY,  435-441. 

difference  between  employers '  liability  and  workmen 's  compensation, 
435-436. 

employers'  liability  legislation,  436-437. 


Bd5  INDEX 

[fiETESENCES  ABE  TO  THE  PAGES.] 

EMPLOYERS'  LIABILITY— Cont. 

federal  employers'  liability  statute  as  to  common  carriers,  437-43S. 

negligence,  438. 

contributory  negligence  under  federal  statute,  438-439. 

distinction  between  contributory  negligence  and  assumption  of  risk, 
439. 

elements  of  damages  for  personal  injuries,  440. 

measure  of  damages  for  death,  440. 

proximate  cause,  441. 
ENTICEMENT  OF  SPOUSE,  See  Alienation  of  Afifections. 
ENTIRE  DAMAGES,  82,  86,  87,  88. 
EXCESSIVE  DAMAGES,  89-95. 

province  of  court  and  jury,  89-93. 

second  trial,  93. 

modern  tendency  toward  high  prices,  effect  of,  93. 

excessive  exemplary  damages,  94. 

EXEMPLARY  DAMAGES,  117-135. 

in  general,  117-120. 

contract,  not  generally  allowed  in,  117,  131. 

for  acts  punishable  criminally,  121. 

actual  damage,  predicated  upon,  121-122. 

malice,  as  affecting,  122-125. 

mistake,  not  assessed  for,  124. 

executors  and  administrators,  not  assessed  against,  124. 

insane  persons,  not  assessed  against,  124. 

young  children,  not  assessed  against,  124. 

for  agent's  act,  125-127. 

against  corporation,  127-129. 

against  joint  defendants,  129-130. 

wealth  of  defendant,  evidence  of,  admissible,  130. 

poverty  of  plaintiff,  admissibility  of  evidence  of,  130. 

for  alienation  of  affections,  409. 

for  assault,  134. 

for  breach  of  promise,  117. 

for  criminal  conversation,  404. 

for  fraud  and  deceit,  391-392. 

for  malicious  prosecution,  383-384. 

for  nuisance,  133. 

for  personal  injury,  131,  132. 

for  right  of  privacy,  interference  with,  412, 

for  seduction,  397. 

for  slander  and  libel,  371,  376. 

for  telephone  company's  refusal  to  give  service,  133. 
EXPENSES,  156-159. 

in  general,  156. 

breach  of  contract,  resulting  from,  156,  159. 


INDEX  tbi 

[REFERENCES  ARE  TO  THE  PAOSB.] 

EXPENSES— Cont. 

in  personal  injury,  15^. 

tort,  resulting  from,  157,  159. 
EXPENSES  OF  LITIGATION,  191-194. 

court  costs,  191. 

counsel  fees,  191. 

improvident  defense  not  basis  of  damages,  193. 

P 

FALSEHOOD— 

no  action  for,  without  damage,  388. 
FALSE  IMPEISONMENT,  385-387. 

in  general,  385. 

elements  of  compensation,  385-386. 

proximity  and  certainty,  386-387. 

excessive  damages,  387. 

irrelevance  of  proof  that  plaintiff  has  a  family,  387. 
FEAR,  178-180. 
FRAUD,  388-392. 

damage  the  gist  of  the  action,  388. 

elements  of  compensation,  388-391. 

proximity  of  cause,  391. 

certainty,  391. 

exemplary  damages,  391-392. 
FRIGHT— 

right  to  recover  for  physical  injury  consequent  upon,  178-180. 

G 

GENERAL  AND  SPECIAL  DAMAGES,  145-146. 

GENERAL  PRINCIPLES,  1. 

GOODS— 

sale  of,  222-232. 

carriage  of,  265-269. 


HIGHER  INTERMEDIATE  VALUE— 
rule  of,  335. 


INADEQUATE  DAMAGES,  89-93,  95-96. 

province  of  court  and  jury,  89-93. 
INCONVENIENCE,  185-186. 
INDEMNITY,  253-255. 

in  general,  253. 


502  INDEX 

[referenois  are  to  the  paoes.] 

INDEMNITY— Cont. 

contracts  of,  253-255. 

kinds  of  indemnity  contracts,  253. 

fire  insurance  as,  248. 

maturity  of  rights  under  indemnity  contract,  253,  255. 
INJURIA  SINE  DAMNO.  See  Nominal  Damages. 
INJURY— 

contrasted  with  damage,  4. 
INNOCENT  TRESPASSER— 

measure  of  damages  against,  320. 
INSURANCE,  246-252. 

vagueness  of  term  "insurance,"  246. 

accident,  246. 

life,  246,  251. 

fire,  248,  251,  252. 

marine,  246n,  248. 

insurability  of  interest,  249. 
INTEREST,  195-197. 

in  general,  195. 

not  formerly  allowed,  195. 

on  liquidated  sums,  195. 

on  overdue  negotiable  instruments,  195. 

on  unliquidated  sums,  196, 

statutory  rules,  197. 
INTERFERENCE  WITH  CONTRACT— 

a  tort,  210. 
INTERVENING  CAUSE,  29. 

J 

JURY— 

control  of,  by  court,  89-93. 

discretion  of,  89-93. 

proximate  cause,  question  for,  40. 


LABOR,  See  Work,  Labor  and  Services. 
LAST  CLEAR  CHANCE,  DOCTRINE  OF,  37. 
LAWS,  CONFLICTS  OF,  See  Conflicts  of  Laws. 
LEGAL  INJURY— 

contrasted  with  damage,  4. 

damage  sometimes  necessary  for,  2,  144,  308. 

no  recovery  without,  1-2. 

without  damage.  See  Nominal  Damages. 
LIBEL,  See  Slander  and  Libel. 
LIFE— 

duration  of,  how  calculated,  153n. 


INDEX  503 

[retisences  are  to  the  pages.] 

LIMITATION  OF  RECOVERY  TO  PLAINTIFF'S  INTEREST,  7-13. 

in  contract,  7. 

in  tort,  7-13. 

where  plaintiff  and  defendant  both  hold  interests  in  subject  matter, 
7,  12. 

where  defendant  is  a  stranger  to  subject-matter,  8,  11,  12. 

mortgagees  and  mortgagors,  9,  10,  11,  12. 
LIQUIDATED  DAMAGES  AND  PENALTIES,  97-110. 

in  general,  97-98. 

language  not  conclusive  as  to  whether  liquidated  damages,  98-99. 

liquidation  limited  in  effect,  according  to  agreement,  99-100. 

principles  of  differentiation,  100-103. 

agreed  valuation,  103. 

deposits,  103-104. 

illegal  stipulation  of  damages,  104. 

interest  on  liquidated  damages,  104. 

alternative  agreements,  104. 

liquidating  damages,  attempts  at,  in  employment  contracts,  109,  240. 
LITIGATION,  EXPENSES  OF,  See  Expenses  of  Litigation. 
LOAN— 

damages  for  breach  of  contract  for,  234,  235. 
LORD  CAMPBELL 'S  ACT,  417n. 
LOSS  OF  SERVICES,  189-190. 

M 

MALICE,  122. 

MALICIOUS  PROSECUTION,  378-384. 

in  general,  378. 

elements  of  damage,  379-381. 

discretion  of  jury,  381-383,  384. 

exemplary  damages,  383-384. 

wrongful  use  of  process,  384. 
MARINE  INSURANCE,  246n,  248. 
MARRIAGE— 

breach  of  promise  of,  282-305. 

value  of,  283. 
MEASURE  OF  DAMAGES— 

in  general,  147-149. 
MENTAL  SUFFERING,  169-184. 

in  general,  169. 

mental  suffering  as  element  of  damage  in  contract,  169-173. 

mental  suffering  as  element  of  damage  in  tort,  173. 

in  actions  for  torts  purely  to  property,  173-174. 

in  torts  to  the  person,  174-175. 

where  there  is  no  physical  injury,  175-177. 

not    arising   from    physical    injury,   177-178. 

physical  injuries  resulting  from  mental  sufferinir,  178-180. 


504  INDEX 

[refeeences  aee  to  the  pages.] 

MENTAL  SUFFERING— Cont. 

the  "impact  theory,"  180. 

mental  suffering  caused  by  injury  to  third  party,  180-181. 

in  alienation  of  affections,  407. 

in  assault,  363. 

in  breach  of  promise,  284,  302. 

in  criminal  conversation,  401. 

in  death  by  wrongful  act,  418. 

in  personal  injuries,  184,  347. 

in  right  of  privacy,  412. 

in  seduction,  395. 

in  slander  and  libel,  370-371,  376,  377. 

in  telegraph  cases,  170,  274. 
MESNE  PROFITS,  311. 
MITIGATION,  136-139. 

in  general,  136-138. 

contributory  negligence  in  mitigation,  138. 

in  alienation  of  affections,  407-408. 

in  breach  of  promise,  292-298,  304. 

in  conversion,  338-339. 

in  criminal  conversation,  402-403,  405. 

in  personal  injury,  354-355. 

in  right  of  privacy,  412. 

in  seduction,  396-397. 

in  slander  and  libel,  371-373,  377. 

in  trespass  to  realty,  338-339. 
MONEY— 

the  standard  by  which  damages  are  measured,  3. 

contracts  to  pay  or  lend,  233-235. 

failure  to  pay  money  owed,  233. 
failure  to  lend  money,  234,  235. 
MOTIVE— 

as  affecting  the  measure  of  damages,  117-135,  320. 

N 

NATURAL  AGENCY,  AS  PROXIMATE  CAUSE,  33. 
NATURAL  AND  PROBABLE  CONSEQUENCE— 

requirement  in  contract,  19. 

sometimes  made  a  requirement  for  consequential  damages  in  tort,  23. 
NEGLIGENCE— 

in  general,  307. 

"negligence  and  causation,  307. 

damage  essential  to  maintenance  of  action  for,  176,  308. 

gross,  as  ground  for  exemplary  damages,  123-124. 
NEGLIGENT  TORTS,  307-308. 
NEGOTIABLE  INSTRUMENTS,  195. 


INDEX  505 

[rEPEEENCES  ABE  TO  THE  PAGES.] 

NOMINAL  DAMAGES,  111-116. 

in  general,  111. 

damage,  whether  gist  of  action,  importance  of  question,  112. 

distinction  between,  and  small  damages,  113. 

where  ease  is  too  small  to  justify  even  nominal  damages,  114. 

new  trial  for  non-assessment  of,  114. 
NUISANCE,  342-346. 

elements  of  compensation,  342-345,  346. 

special  damage  necessary,  342. 

no  duty  in  plaintiff  to  mitigate  damage  to  his  property,  345. 

P 
PAIN,  PHYSICAL,  167-168. 
PARTIAL  LOSS,  335-339,  340. 
PARTIES— 

contemplation  of,  19-20,  41-45,  199-201. 
PARTNERSHIP,  261-263. 

breach  of  partnership  articles  by  refusal  to  begin  business  or  by 

wrongful  dissolution,  261. 
liquidation  of  damages  for  dissolution,  262. 
transactions  concealed  by  one  partner  from  another,  262,  263. 
past  profits  as  evidence  of  probable  future  profits,  262. 
PASSENGERS— 

actions  by,  269,  270,  271,  272. 
PASSION  AND  PREJUDICE  OF  JURY— 

shown  by  excessive  or  inadequate  damages,  91-92. 
PENAL  BOND,  98. 

PENALTY,  See  Liquidated  Damages  and  Penalties. 
PERFORMANCE— 

expense  of  preparation  for,  156. 
PERSON  AND  FAMILY— 
torts  affecting,  347-426. 
PERSONAL  INJURY,  See  Battery  and  other  Personal  Injuriea. 
PERSON^  PROPERTY— 

actions  for  tortious  damage  pertaining  to,  329-341. 
in  general,  329-330. 

for  total  and  permanent  loss  of  a  chattel,  330,  340. 
value,  330-335,  340-341. 

for  losses  less  than  permanent  or  total,  335-339,  340. 
mitigation,  338-339. 
exemplary  damages,  339. 

avoiding  consequences,  cost  of,  element  of  damage,  340. 
contracts  for  carriage  of,  265-269. 
sales  and  contracts  to  sell,  222-232. 
distinction  between,  222. 
failure  of  vendor  to  supply  goods,  215. 
profits  on  subcontract  as  element  of  damage,  225. 


506  INDEX 

[R£FEII£NCES  ABE  TO  THE  PAGES.] 

PERSONAL  PBOPERTY— Cont. 

breach  of  warranty,  228,  232. 
damages  for  delay  in  delivery,  227. 
non-acceptanee  by  vendee,  229,  230,  231. 
PHYSICAL  PAIN,  167-168. 
PLACE— 

of  assessing  damages,  140-143. 
PLEADING  AND  PRACTICE,  144-146. 

when  necessary  to  plead  damage  specially,  144. 

general  and  special  damages,  145-146. 
POLICY  OF  INSURANCE— 

open,  248. 

valued,  248. 

See  Insurance. 
POSSESSION  OF  REALTY— 

action  for,  311. 
POWER,  PHYSICAL,  LOSS  OF,  152-154. 

apart  from  power  to  earn  money,  153. 

procreative,  154. 
PRICE,  See  Value. 
PRIVACY,  INTERFERENCE  WITH  RIGHT  OF,  411-413. 

in  general,  411-412,  412-413. 

elements  of  damage,  412. 
PROCEDURE,  GENERAL  RULES  OF,  144-146. 
PROFITS,  160-166. 

See  Certainty  of  Proof,  and  also  Personal  Property,  Sales  and  Con- 
tracts to  Sell. 
PROMISE,  BREACH  OF,  See  Breach  of  Promise. 
PROPERTY— 

loss  of,  element  of  damage,  155. 
PROSPECTIVE  DAMAGES,  82-85,  87. 
PROXIMATE  CAUSE,  See  Cause  and  Result. 

Q 

QUANTUM  MERUIT,  205-206,  236,  244,  245. 

B 

REAL  PROPERTY— 

contracts  relating  to,  213-221. 

failure  of  vendor  to  convey,  213. 

breach  of  grantor's  covenants  in  conveyance,  216,  220. 

breach  by  vendee,  218. 

breach  of  contract  by  lessor,  218,  220. 

breach  of  lessor's  covenant  to  make  repairs,  219. 

breach  of  lessee's  covenant  to  make  repairs,  219. 


INDEX  507 

[references  are  to  the  faqes.] 

REAL  PSOPERTY— Cont. 

torts  pertaining  to  realty,  309-328. 

in  general,  309. 

permanent  and  temporary  injury,  309-311,  324,  325. 

ejectment,  311,  327. 

to  what  time  damages  are  recoverable,  311-315,  324,  325. 

where  trespass  takes  something  from  the  land,  315-320. 

removal  of  lateral  and  subjacent  support,  321. 

nominal  damages,  321,  327. 

remote  and  uncertain  damages,  321-322. 

avoidable  consequences,  322,  324. 

willfulness,  322-323,  325,  326. 

aggravation,  323. 

mitigation,  323. 
REMOTE  DAMAGE,  17. 
REPLEVIN,  336-337. 
REPUTATION— 

loss  of,  as  element  of  damage,  187-188. 
RIGHT— 

violation  of,  imports  damage,  144. 

S 

SALES,  See  Personal  Property,  Sales  and  Contracts  to  Sell. 
SEDUCTION,  393-399. 

in  general,  393-395,  398. 

elements  of  compensation,  395-396. 

mitigation,  396-397. 

aggravation,  397. 

wealth  of  plaintiff  and  defendant,  397. 

discretion  of  the  jury,  397-398,  399. 
SERVICES,  LOSS  OF,  189-190. 

in  seduction,  393. 
SLANDER  AND  LIBEL,  365-377. 

in  general,  355-366. 

slander,  366. 

libel,  367. 

malice,  367-369. 

elements  of  compensation,  369-371. 

loss  of  election,  369. 

loss  in  business,  370. 

mental  suffering,  370-371,  376,  377. 

exemplary  damages,  371,  376. 

mitigation,  371-373,  377. 

bad  character  of  plaintiff,  371. 

truth  of  statement,  372. 

defendant's  belief  in  truth  of  statement,  372. 


508  INDEX 

[references  are  to  the  pages.] 

SLANDER  AND  LIBEL— Ck)nt. 

absence  of  malice  of  defendant,  372. 
retraction  by  defendant,  372n. 
intoxication  of  defendant,  372-373. 

proximity  and  certainty,  373-374,  377. 

discretion  of  jury,  374. 

necessity   of   pleading   and   proving   damage    where  words   are   not 
actionable  per  se,  366,  367,  375. 

what  damage  supports  action  for  slander,  376. 

aggravation,  376. 
SPECIAL  DAMAGE— 

distinguished  from   special  damages,  145ii. 
SPECIAL  DAMAGES,  145-146. 

based  upon  special  pleading,  145-146. 
SPECIFIC  PEKSONAL  PEOPERTY— 

recovery  of,  336-337, 
SPOKEN  WORDS— 

when  action  lies  for,  366. 
STATUTORY  DAMAGES,  120n,  322,  415-420,  435-438,  449. 
STOCKS— 

conversion  of,  335. 
SUBSTANTIAL  DAMAGES,  See  Elements  of  Compensation. 


TAKING— 

of  property  in  eminent  domain  proceedings,  427-434. 
TELEGRAPH  COMPANIES,  274-278,  279-281. 

in  general,  274. 

contemplation  of  parties  as  affecting  damages,  274. 

elements  of  compensation,  274. 

liability  for  cipher  message,  275. 

mental  suffering,  170,  274. 

who  may  maintain  action,  276. 
TELEPHONE  COMPANIES,  278. 
TIME, 

loss  of,  150. 

of  assessing  damages,  82. 
TORT,  Part  IV,  307-426. 

rule  in,  21. 

consequential  damages  for,  16. 

direct  damages  for,  16. 

exemplary  damages  for,  117-135. 

nominal  damages  for,  111-113. 

affecting  person  and  family,  347-426. 

affecting  personalty,  329-341. 

affecting  realty,  309-328. 


INDEX  509 

[refeeences  aee  to  the  pages.] 

TRESPASS,  309-328. 

elements  of  compensation,  309-328. 

injury  to  various  interests,  309. 

nominal  damages,  327. 

permanent  injury,  309-311,  324,  325. 

remote  and  uncertain  damage,  321-322. 

temporary  injury,  309-311,  324,  325. 

willfulness,  322-323,  325,  326. 

aggravation,  323. 

mitigation,  323. 
TROVER,  See  Conversion. 
TWICE  PUT  IN  JEOPARDY— 

rule  as  affecting  exemplary  damages,  118-119. 

U 
UNCERTAINTY,  See  Certainty  of  Proof. 

V 
VALUE— 

in  carriers,  value  at  destination,  266-267. 

in  conversion,  330-335,  340-341. 

in  contract  for  sale  of  goods,  223-224,  230,  231,  232. 

in  contract  for  sale  of  land,  220. 

diminution  in  value  of  realty  by  tort,  310,  315-320. 

higher  intermediate,  335. 

market  value,  330-335,  427-429. 

in  trespass  by  willful  wrongdoer,  322-323. 

in  trespass  by  inadvertent  wrongdoer,  320. 
VOLENTI  NON  FIT  INJURIA,  4. 

W 

WAGER  POLICIES— 

illegal,  249. 
WAGES,  151. 
WARRANTY,  216,  228-229,  232. 

consequential  damages  for  breach  of,  228-229. 

covenant  of,  in  conveyance  of  realty,  216. 
WORK,  LABOR  AND  SERVICES,  236-245. 

special  and  implied  contracts,  236, 

quantum  meruit,  236,  244,  245. 

entirety  of  recovery,  238. 

rules  of  causation  as  affecting,  239. 

liquidation  of  damages,  240. 

avoidable  consequences,  241,  244. 

doctrine  of  constructive  service,  242. 

mitigation,  243. 

function  of  the  jury,  243. 


510  INDEX 

[KEnaENCES  ABE  TO  THE  PAGES.] 

WORKMEN'S  COMPENSATION,  441-452. 
in  general,  441. 

basis  of  right  to  workmen's  compensation,  442-443. 
negligence   of   employer  of  no   effect  in   determining  whether   em- 
ployee be  compensated,  443. 
scope  of  employment,  443-446,  450-452. 
what  acts  are  within  the  employment  and  what  injuries  are  held 

to  have  resulted  from  it,  443-446,  450-452. 
"accident,"  445-446,  450,  451,  452. 
referring  disability  to  original  injury,  446. 
amount  of  compensation,  446. 

aggravation  or  acceleration  of  injury  by  pre-existing  condition,  447. 
"total  disability,"  447. 
disfigurement,  447. 
avoidable  consequences,  448. 
dependents,  448. 
choice  of  remedy,  448-449. 
compulsory  and  elective  acts,  449. 
exemplary  damages,  449. 
distinguished  from  employers'  liability,  435-436. 


'iE»S  =IEG  0\A 


A     000  687  248     5 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 
Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAR131980 


24131 


